Toth v Director of Public Prosecutions [2017] NSWCA 344 | Case summary

Court of Appeal (NSW)|2017-11-10|Before: Leeming JA, White JA

NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 R v Clewer (1953) 37 CR. App. R. 37 R v Esposito (1998) 45 NSWLR 442 Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 Category: Principal judgment Parties: Andrew Leslie Toth (Applicant) Director of Public Prosecutions (NSW) (1st Respondent) District Court of New South Wales (2nd Respondent) Representation: Counsel: Self-represented (Applicant) A M Mitchelmore (1st Respondent) n/a (2nd Respondent)

Solicitors: n/a (Applicant) C Hyland, Solicitor for Public Prosecutions (1st Respondent) n/a (2nd Respondent) File Number(s): 2017/224615 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: n/a Date of Decision: 22 March 2017 Before: Syme DCJ File Number(s): 2015/170606

[This headnote is not to be read as part of the judgment] In March 2016, the applicant was charged with the offence of filming a person's private parts under s 91L of the Crimes Act 1900 (NSW). "Private parts", as defined by s 91I, includes a person's genital area or anal area, whether bare or covered by underwear. It was alleged that the applicant had used a pen-camera to film up a woman's skirt as she walked up the stairs at Town Hall train station. In the hearing before the Local Court, the applicant did not deny that he filmed the woman or that her underwear had been filmed. However, he asserted that he had held the pen-camera below the skirt's hemline (as opposed to under the skirt) so as to film the perspective that the public would see. He also asserted that, due it its length, the skirt had flipped back as the woman climbed and the filming of the underwear was only incidental to his filming and was not intentional. The main issue before the Local Court was whether the applicant had filmed the woman's private parts for the purpose of obtaining or enabling another person to obtain sexual arousal or sexual gratification. The applicant gave evidence that he was researching a book that he was writing on the subject of 'upskirting'. The magistrate found that the surreptitious nature of the filming indicated that the filming was done for the purpose of some form of sexual gratification and the applicant was found guilty of the offence. The applicant appealed the conviction to the District Court under s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) (the "Crimes (Appeal and Review) Act"). Under s 18 of the Crimes (Appeal and Review) Act the hearing was to be conducted on the basis of the evidence given in the Local Court. The applicant represented himself on the hearing of the appeal in the District Court. The primary judge found that the applicant had held the pen-camera under the woman's skirt. Her Honour was not satisfied that the purpose of filming was to research a book, and found that it was for the purpose of sexual gratification. The conviction was upheld. The applicant subsequently filed a summons for judicial review of the decision of the District Court. The principal issues for determination on the summons for judicial review were: (1) whether the primary judge's interventions were excessive so as to amount to procedural unfairness; (2) whether the primary judge failed to consider arguments proffered by the applicant; (3) whether there was a reasonable apprehension that the primary judge might have been biased; (4) whether the primary judge had misapprehended the nature or limits of the District Court's functions in hearing an appeal under s 18 of the Crimes (Appeal and Review) Act.

White JA, with Leeming JA and Barrett AJA agreeing: In relation to (1): (i) The issues of apparent bias and procedural unfairness by excessive judicial intervention are distinct. The grounds may overlap, but need not necessarily do so: at [61]. RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 applied. Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 applied. (ii) Whether judicial intervention gives rise to procedural unfairness or an apprehension that there was not a fair trial depends not only on the extent and manner of a judge's intervention, but the nature of the trial and the circumstances in which the intervention occurs: at [62]. Galea v Galea (1990) 19 NSWLR 263 applied. Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 applied. (iii) Although the primary judge was entitled to clarify or test a submission and to express scepticism, the questions asked by the primary judge amounted to cross-examination of the applicant: at [63], [71], [74], [76]. (iv) In a trial or an appeal before a judge alone it is important that the accused or the appellant not be left with a sense of injustice on the ground that his or her case has not been able to be fairly put to the judge and understood: at [66]. In relation to (2): (v) The primary judge failed to address or determine the mens rea required for the commission of an offence under s 91L of the Crimes Act 1900 (NSW), which amounted to jurisdictional error: at [85], [88]. (vi) The applicant's submission that the Crown had not established that the filming was done in circumstances in which a reasonable person would reasonably expect his or her private parts "could not", as opposed to "would not" be filmed, was not addressed by the primary judge. Nor did the primary judge provide reasons for construing the words "could not" in s 91L as meaning "would not": at [57], [85]. Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 applied. NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 applied. In relation to (3): (vii) It is not necessary to consider the ground of apprehended bias before all other grounds of review in circumstances where relief is sought by way of judicial review on the grounds of jurisdictional error and the result of any of the grounds of review being made out would be the quashing of the decision below and the remittal of the matter to the lower court for the proceeding to be determined in accordance with law: at [60]. Goodwin v Commissioner of Police [2012] NSWCA 379 applied. Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 applied. Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 considered. In relation to (4): (viii) As the rehearing in the District Court was on the basis of the transcript of evidence in the Local Court, the primary judge was required to observe the "natural limitations" of an appellate court in conducting a rehearing on the record, including the advantage of the magistrate in assessing a witness' credibility: at [80]. Charara v The Queen [2006] NSWCCA 244; (2006) 164 A Crim R 39 applied. McKellar v Director of Public Prosecutions (NSW) [2011] NSWCA 91 applied. Dyason v Butterworth [2015] NSWCA 52 applied. (ix) The primary judge's assessment of the applicant's credibility based on his responses to the primary judge's questions was irregular and had no regard to the nature of the appeal with which the primary judge was dealing and the limits on the District Court's functions in determining the appeal: at [83].

Judgment

LEEMING JA: I agree with White JA.
WHITE JA: On 15 March 2016 the applicant, Andrew Leslie Toth, stood charged in the Local Court with an offence of filming a person's private parts contrary to s 91L of the Crimes Act 1900 (NSW). Section 91L(1) provides: "91L Filming a person's private parts (1) General offence A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person's private parts, in circumstances in which a reasonable person would reasonably expect the person's private parts could not be filmed: (a) without the consent of the person being filmed to being filmed for that purpose, and (b) knowing that the person being filmed does not consent to being filmed for that purpose, is guilty of an offence. Maximum penalty: 100 penalty units or imprisonment for 2 years, or both."
Section 91L is in Div 15B of Pt 3 of the Crimes Act. Section 91I (also in Division 15B) relevantly provides: "91I Definitions (1) In this Division: … private parts means: (a) a person's genital area or anal area, whether bare or covered by underwear, or (b) the breasts of a female person, or transgender or intersex person identifying as female. … (3) For the purposes of this Division, a person films another person, or another person's private parts, if the person causes one or more images (whether still or moving) of the other person or the other person's private parts to be recorded or transmitted for the purpose of enabling the person or a third person to observe those images (whether during the filming or later)."
On 15 March 2016 a magistrate of the Local Court (Viney LCM) concluded that the offence was made out. On 30 May 2016 Mr Toth was formally convicted of the offence. He was ordered to enter into a good behaviour bond for a term of 18 months to date from 30 May 2016. On the same day Mr Toth filed a notice of appeal to the District Court against his conviction. He appealed as of right pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) (the "Crimes (Appeal and Review) Act").
The appeal was heard on 22 March 2017 by her Honour Judge Syme (the "primary judge"). Her Honour delivered an ex tempore judgment and dismissed the appeal.
Pursuant to s 63(2) and (3) of the Crimes (Appeal and Review) Act the execution of the sentence imposed by the Local Court was stayed until the determination of the appeal by the District Court. Immediately following the dismissal of the appeal the primary judge confirmed the orders by stating: "The offender, ANDREW LESLIE TOTH is convicted and is directed to enter into a good behaviour bond for 18 months pursuant to Section 9(1) of the Crimes (Sentencing Procedure) Act 1999 to commence on 22 March 2017 and accept the following conditions: The offender must be of good behaviour and appear before the court during the bond term if required. To accept Community Corrections Service supervision for as long as considered necessary and obey all reasonable directions. To attend for counselling, educational development, drug or alcohol rehabilitation. To report to Community Corrections Service at City Community Corrections District Office within 7 Days."
No issue was raised in these proceedings as to the appropriateness of those orders having regard to the primary judge's order dismissing the appeal.
No appeal lies to this Court from orders of the District Court dismissing the appeal to that Court from the conviction recorded in the Local Court. On 24 July 2017 Mr Toth filed a summons for judicial review of the decision of the primary judge. The effect of s 176 of the District Court Act 1973 (NSW) is that an applicant must establish jurisdictional error on the part of the District Court (see e.g. Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [10]; Morgan v District Court of New South Wales [2017] NSWCA 105; (2017) 345 ALR 621 at [32]; Gelle v Director of Public Prosecutions (NSW) [2017] NSWCA 245 at [48]).
The summons was filed outside the period of three months prescribed by Uniform Civil Procedure Rules 2005 (NSW) r 59.10(1). The respondent, the Director of Public Prosecutions (the "DPP"), did not oppose the making of an order for extension of the time for commencement of these proceedings for judicial review. The transcribed reasons for judgment did not become available to Mr Toth until 21 June 2017. An order should be made under r 59.10(2) extending the time for commencing these proceedings to the date of the filing of the summons.
For the reasons which follow the orders of the District Court should be quashed and the matter remitted to the District Court for determination of the appeal.

Circumstances of the Charge: Local Court Proceedings

The circumstances of the charge were as follows. According to the evidence given in the Local Court, on 1 March 2015 at approximately 3.50pm a Mr Paul Hedderman was walking down a flight of stairs at Town Hall station. As he was walking down the stairs he noticed a man coming up the other way with an object in his hand. He observed that it was a bright object and was like a pen. The man holding the pen-like object was Mr Toth. Mr Hedderman gave evidence that Mr Toth pointed the pen-like object up the skirt of a young woman who was walking up the stairs in front of Mr Toth. There was no dispute that the pen-like object was a camera. Mr Toth did not deny that he was filming the woman in question. It was his evidence that his purpose in filming was to show what people at the bottom of the stairs could see when the woman walked upstairs. He gave evidence that he placed the camera in such a way that it would record what people at the bottom of the stairs would have seen, had they been looking. He said that the camera was held outside of the hemline of the girl's skirt but underneath the hemline, by which, in context, he clearly meant below the hemline. He gave evidence, which was unchallenged, that at the time he was researching and writing a book that became two books, one of which was called Up Skirting and the other was called Female Flashing. Mr Toth said that initially he had intended to only write one book, but as he researched it, he found that the subject was too broad. The book called Up Skirting was published in May 2015. An excerpt of that book was tendered. The other book called Female Flashers was, at the time of the Local Court hearing, a work in progress. He had written and self-published on Amazon a number of books on exhibitionism and on many other topics.
The young woman in question was oblivious to having been filmed. She has not been identified. Mr Hedderman said that she was wearing a frilly skirt, it was probably knee length or a bit shorter. Mr Hedderman said that at first the "pen" was outside the skirt, but Mr Toth had his hand up the skirt so that the skirt was covering his hand. Mr Hedderman was unshaken in cross-examination that Mr Toth put the pen up the girl's skirt, although she remained oblivious to his doing so. Mr Hedderman turned and followed Mr Toth up the stairs. He said "What do you think you're doing?", and Mr Toth said "What, what? Nothing." Mr Hedderman then accused him of filming up the girl's skirt with the pen. Mr Hedderman gave evidence that Mr Toth responded "No the light wasn't on". Then Mr Hedderman grabbed the pen. Mr Toth pressed the pen once or twice to show how a green light would turn on and off. He told Mr Hedderman that the light went on when the pen was recording and that the light was not turned on. Mr Hedderman detained Mr Toth by holding on to a backpack that Mr Toth was wearing. A security guard in the vicinity came over and called the police. Video footage was later extracted from Mr Toth's pen-camera.
Mr Toth denied that he filmed from under the woman's skirt, as distinct from behind and below it. He said the camera was outside her skirt at all times. This is consistent with the video taken by his pen-camera. In the last second or so of the 45-second video there is brief vision of the young woman's underwear. Mr Toth said that that was the result of the skirt flipping back and that he never deliberately filmed under the skirt. He admitted that in response to Mr Hedderman's accosting him and asking him what he was doing, he said "Nothing". He said that he so answered because Mr Hedderman had grabbed him by the wrist and he panicked.
Before the Local Court, Mr Toth was represented by a solicitor, a Mr Whitbread. He identified the only issue as being whether the prosecution had proved beyond reasonable doubt that the filming had been made for the purpose of obtaining or enabling another person to obtain sexual arousal or sexual gratification. He submitted that Mr Toth was a long-standing author who had published multiple books on exhibitionism, voyeurism and similar subjects, and his denial that the filming was done for a sexual purpose should be accepted.
On the question of whether Mr Toth placed the camera pen up the woman's skirt as described by Mr Hedderman, or below and behind as described by Mr Toth, the learned Magistrate found as follows: "… Mr Hedderman says that the pen was extended underneath the skirt and to the point where the full hand at one point was obscured by the skirt. If one accepts the defendant's version, then the pen was held below and behind the skirt but because of the movement of the skirt away from the body the female who was walking ahead her underwear is visible and clearly the film takes an angle underneath the skirt, effectively, because of the movement of the skirt away from her body. … I accept in the first clip that the skirt does tend to flip back. On the basis that she is climbing a set of stairs and she is not wearing a fitted skirt one would, I would have thought, anticipate that there would be some movement of the skirt as there would with any reasonably loose fitting item when the climbing process is taking place. So, in terms of whether the hand holding the pen has to be physically up and under the skirt for the purposes of this particular filming, I do not accept that that is necessarily the case. I think it is easily anticipated that in a skirt such as the one that he had decided to film the movement of the skirt could well have been anticipated.
The effect of these reasons is that the magistrate did not find that Mr Toth positioned his pen-camera under the woman's skirt, but rather he filmed her skirt and posterior from behind and below and the image of her private parts, as defined in s 91I, was taken when her skirt flipped back.
The learned magistrate rejected Mr Toth's evidence that the filming was undertaken as part of Mr Toth's research and found that the surreptitious nature of the filming clearly indicated that the filming was done for the purpose of some form of sexual gratification. Her Honour also found: "I find the suggestion that individuals who have no idea that their privacy is being so blatantly breached in public circumstances and certainly when one looks at the piece of legislation it would be expected that no individual, female or otherwise, would expect that their private personal circumstances are being breached so blatantly in a public train station and the reasonable person, I would have thought, would always have accepted that that is an environment where that type of filming would not be taking place. Given the material before this Court, I certainly reject the suggestion proffered by Mr Toth that this is legitimate research in regard to the book. Certainly, the present one before me does not support that at all and I am satisfied that he did in fact film the private parts certainly without the consent of this particular female and it was done for the purposes of sexual gratification."
Mr Toth did not appeal from the sentence imposed by the Local Court. On the hearing of his appeal against the conviction Mr Toth represented himself.

District Court Proceedings

Pursuant to s 18 of the Crimes (Appeal and Review) Act the appeal against conviction to the District Court was by way of rehearing on the basis of the evidence given in the Local Court, subject to any fresh evidence that might be given with leave. No direction was given under s 19 of the Crimes (Appeal and Review) Act for a person to attend and give evidence in person. The DPP tendered the Crown bundle, being the evidence before the Local Court. Mr Toth tendered an abridged version of the book he was said to have been researching, "Female Flashers". It was admitted without objection. No other additional evidence was adduced.
The primary judge had other matters in her list. In the morning she received the Crown bundle and the matter was adjourned until 2pm. On resumption the primary judge informed Mr Toth that the matter would proceed as a rehearing of what happened in the Local Court. Mr Toth then applied for a stay of the proceeding on the ground that s 91L contained only a narrow protection for women's rights and that public sentiment or public opinion would demand rejection of Mr Toth's answers to the charge. He submitted that the Court would be under an unacceptable pressure to convict so as not to set a precedent for the sort of filming he undertook, even if the defence were valid. He said that a stay should be granted until the law caught up with public sentiment. He submitted that: "… I have a very real fear that public sentiment will creep into any trial of this nature and the reality of such, or the perception of such, will be inevitable. I ask then that in the interest of fairness, and given the danger of bias, real or perceived, the stay be granted until such [time as] the law catches up with public sentiment."
In substance his submission was that if he were convicted, a reasonable person might apprehend that the conviction was due to the pressure of public sentiment on the judge. The application was rejected.
After hearing submissions from the Crown Mr Toth provided the primary judge with written submissions. In the Local Court the solicitor representing Mr Toth had stated that "… the prosecution has to prove each of those elements [of the offence] beyond reasonable doubt. The defendant has not sought to advance a case that any of the other elements are not made out, save for the element for the purpose of obtaining or enabling another person to obtain sexual arousal or sexual gratification."
However, in his written submission before the District Court Mr Toth took issue with each of the elements of the offence under s 91L. He conceded that he filmed the woman's private parts, albeit fleetingly, but submitted that the Crown had not adduced any evidence that he intentionally filmed the woman's private parts.
He submitted that the video footage of 45 seconds showed that only about one per cent of the footage caught the subject's private parts. He submitted that if the camera had been under the subject's skirt, as was alleged, then a deliberate intention to film the private parts could readily be inferred, but the camera at all times was outside the skirt, even for the split second that the underwear came into view. He submitted that filming of the private parts was not deliberate or intentional.
Secondly, in his written submission, Mr Toth contended that the Crown had not established that the filming was done without the consent of the person being filmed. He accepted that there was no explicit consent, but submitted that there was insufficient evidence to establish that there was no implied consent to the filming. He submitted that it should be presumed that the subject knew that her skirt could move or flip back during the climbing process, that the stairs were fairly steep, it was crowded so that were a lot of people whose eye level would have been below the hemline of the skirt as the subject would have known, and that cellphones with cameras were very common. He submitted that the subject had two choices: either to hold down her skirt while walking up the stairs, or to allow the skirt to move and flip back, and if she chose not to hold down her skirt then an inference of an implied consent to being filmed was available. He submitted that s 91L was never intended to prevent members of the public from filming public things in public places. He also submitted that the Court could not find that he knew that there was no implied consent.
This was a difficult submission to make good and was treated by the primary judge with scepticism and scorn. In the course of oral submissions Mr Toth sought to relate it to a separate submission, namely that the Crown had not established that a reasonable person in the position of the woman in question would reasonably expect that her private parts could not be filmed. He submitted on the basis of findings made by the magistrate that because the skirt was a reasonably loose fitting item that had a tendency to flip back such that it could easily be anticipated that the skirt would flip back, there could be no reasonable expectation that the person's private parts could not be filmed. He stressed that this element of the offence required a reasonable expectation that such filming could not be done, not that it would not be done. It was irrelevant whether a reasonable person would reasonably expect that her private parts would not be filmed, if she would reasonably expect that they could be.
Mr Toth also submitted that the Crown had offered "no proof of sexual gratification". He submitted that the Crown offered an inference that the filming had been done for sexual gratification based on the allegation that the camera was under the subject's skirt, but that was not proved because it was refuted by video footage showing that the camera was outside the skirt at all times. He submitted that surreptitiousness was not proof of prurience and that s 91L required both an absence of consent, which he submitted was a proxy for surreptitiousness, and that the filming be for sexual gratification. He submitted that one element could not be used to prove another. He also submitted that he had offered a viable and non-prurient alternative to the Crown's inference of sexual gratification, namely, that he was working on a book project "Female Flashers", which was a study of the skirt and how women wore the latest skirts, and what, if anything, they revealed to the public. He challenged the magistrate's rejection of his evidence that the filming was undertaken as legitimate research in regard to a book he was writing. His submissions included the following: "Furthermore, in rejecting my book research submission Magistrate Viney reversed the onus of proof, disregarding that it is not up to me to prove the veracity of my work, but rather to present submissions that meet the evidentiary standard and give to the Court a viable alternative…in other words, an alternative that fits the circumstances, and this I have done. It is a matter of record, and not disproven, that… 1. I am an author (T16.19-20, T17.24-26, T18.4-17) 2. I've written on a wide range of subjects (T17.28-30) 3. I have written a number of books on public exhibitionism - the first being prior to this charge (T17.37-40) 4. The first such book, called 'The Exhibitionist' (Exhibit 8) was published in 2010 or 2011 - well before the present charge (T17.37-40) 5. I began working on my first UPSKIRTING book on January 2014 (T21.23). This was not challenged in cross-examination. 6. I charge money for the books I write (T18.4-5) 7. I get paid for them (T18.7-13) 8. I have University qualifications that qualify me to write on such subjects as public exhibitionism (T18.34-37) 9. My books (including the two submitted books) indicate an intellectual interest in public exhibitionism, as opposed to a prurient interest in the subject (T17.32-35, T20.5-12). All this is a matter of record and not challenged and not disproven. It is also a matter of record (the video footage) that the camera in this instance was held outside the subject's skirt - which is consistent with a study project - namely how the public behaves and what the public sees". [Emphasis in the original].

Primary Judge's Reasons

The primary judge upheld the conviction. Her Honour delivered ex tempore reasons following the conclusion of oral submissions. The primary judge summarised the elements of the offence and then said: "I make the following findings, based on the evidence before the Local Court. The evidence before the Local Court most importantly was the video evidence which was played in this Court."
Her Honour then summarised the video evidence stating: "The camera image moves down as the woman moves up the stairs. The camera image then moves much closer to the woman and in the final moment, the image captured is under the woman's skirt, with a small glimpse of what appears to be underwear."
Her Honour then summarised Mr Hedderman's evidence that he could see that the pen-camera was up the woman's skirt. Her Honour said: "Mr Henderman's [sic] evidence is supported by my observations of what I saw in that video. Very clearly, the very first part of the video, you can see the camera approaching the back of the skirt. Very clearly, you can see the main image, being at the back of the skirt and then for the last second or so, it is very clear that the image is under the woman's skirt. It is a momentary event. It appears that after this momentary event, Mr Henderman [sic] decided it was his civic duty to apprehend Mr Toth, which he then did."
It is clear from the video that, as Mr Toth submitted, the pen-camera was at all times outside the skirt. It took images of the woman's legs and briefly her underwear that were under the skirt, but it is clear from the video that the camera was not itself under the skirt. Counsel for the DPP submitted that her Honour's relevant finding was that it was the image that was under the woman's skirt. But in my view her Honour's finding that Mr Hedderman's evidence was supported by her observation of what she saw on the video was an acceptance of Mr Hedderman's evidence. Further, her Honour (at judgment p 8) made an express finding that the pen-camera was under the skirt for a very short period of time. Counsel for the DPP accepted that the footage from the pen-camera showed that at all times the outside of the woman's skirt could be seen.
The primary judge then referred to what was said between Mr Hedderman and Mr Toth in which Mr Toth, when asked what he was doing, replied that he was doing nothing. Her Honour noted that Mr Toth's evidence was that he was doing research for a book on morality and women's fashions and things of that nature, but that is not what he told Mr Hedderman when he was apprehended. Her Honour then added: "Mr Henderman [sic] then suggested or told Mr Toth very forcefully that he believed Mr Toth was filming up the woman's skirt. Mr Toth denied this, although this denial was clearly a lie, as can be seen by the evidence that I viewed in this Court and as can be seen by his admissions, both in the Local Court and here."
Her Honour found that Mr Toth did film the covered private parts of a person who was walking up the stairs. She did not address Mr Toth's submission that he did not intentionally film those private parts. Given her Honour's finding that the pen-camera was up the woman's skirt, the basis for Mr Toth's contrary submission fell away.
As shown in the above transcript reference, the primary judge found that Mr Toth lied when he denied to Mr Hedderman that he was filming up the woman's skirt (p 3). Her Honour drew that conclusion from the video evidence and what was said to be his admissions, although no specific admission was identified. Her Honour also found that Mr Toth lied when he responded to Mr Hedderman's question "What are you doing?" by saying he was doing nothing. In submissions, her Honour accurately characterised the Crown case as being that the lies were evidence of consciousness of guilt. In her reasons for judgment the primary judge took into account Mr Toth's denials that he was filming, that the camera was on and that he was doing anything at all, in finding that the filming was done for the purpose of sexual gratification (pp 4 and 8). Her Honour found that the woman had not consented to the filming of her covered private parts as she was walking up the stairs. She rejected Mr Toth's submission that there was implied consent and described that submission as "absolute and errant nonsense". She noted that there was no evidence that Mr Toth ever believed the woman was consenting to being filmed and clearly rejected any such view.
On the question of whether a reasonable person would reasonably expect that the person's private parts could not be filmed, the primary judge said as follows: "The next element in issue is whether the filming was done in circumstances which a reasonable person would reasonably expect the person's private parts could not be filmed. Mr Toth seemed to make a point that simply because filming can be done, then reasonable people would reasonably expect in the circumstances that that would be a reasonable option. The circumstances in which this filming was done certainly show that it is technically and physically possible to film up a woman's skirt while they are walking up a set of stairs at the Town Hall station. Certainly that is physically possible. The question is, is whether the circumstances are such that a reasonable person would reasonably expect a person's private parts could be filmed in such circumstances and adopting the reasonable person test to that, the answer of course must be no. A reasonable person would not expect or have any reasonable expectation that filming of a person's private parts - whether covered or not - while they are walking up the stairs at the Town Hall station".
Some words are clearly missing from the last paragraph quoted above. A recording of the proceedings in the District Court, including the primary judge's reasons, was tendered. The words missing from the end of the last quoted paragraph were "… is something that a reasonable person would expect".
Finally, the primary judge concluded that the filming was done for the purposes of sexual gratification. In reaching that conclusion her Honour took into account that the filming was surreptitious, Mr Toth's denial to Mr Hedderman that he was filming, and, that the pen-camera had been under the woman's skirt. Her Honour also was not satisfied that Mr Toth needed to film in order to do research for the book. Her Honour said: "The explanations given by Mr Toth as to why he behaved in this way were varied, some of them were contradictory. The first explanation that he gave was that he was doing research for his book. He was unable to explain how, having already formed an opinion that young women wear short skirts and sometimes behave in different ways when their underwear can be seen when they are walking upstairs, he was unable to explain why he needed to film that, having already reached that conclusion, for his apparent book. His second explanation is that the filming under the skirt occurred by accident. That is, that he just happened to have his pen camera at the back hem of the woman's skirt and the skirt all by itself flipped up, indicating and agreeing with my suggestion, that it was the skirt's fault that his camera was underneath the skirt. Those explanations are, in my view, simply not credible and I reject them. Added to that is the lies to which I have already referred, the lies in his explanation. For those reasons, I find that there is no other reasonable hypothesis for the filming by Mr Toth in the manner that he did, other than for either his own sexual gratification or possibly for the gratification of another."

Grounds of review

The grounds of review raised by Mr Toth in his summons were as follows: "1 The Judge failed to apply procedural fairness • Constant interruptions • Bullying • Inappropriate intervention in the conduct of the case 2 The Judge displayed bias • Prejudgment interrogation failure to take into account appellant's arguments 3 The Judge made errors of law • Failure to supply reasons • Failure to explain findings of fact in regard to each element 4 The Judge made unsupported findings of fact or findings that were based on irrelevant material"
Mr Toth also submitted that the primary judge used statements he made in response to questioning from the primary judge to ground findings adverse to him, although those statements were not evidence.

Course of Proceedings in the District Court

At the beginning of Mr Toth's submissions before the primary judge, Mr Toth, in response to a question from the primary judge, accepted that he filmed the relevant video footage. Mr Toth had submitted in writing that the Crown had not proven that he filmed the private parts deliberately or intentionally. The primary judge, in referring to that part of Mr Toth's written submission, asked the following: "HER HONOUR: …Do I take it that you say you do not dispute that you filmed the relevant video footage? APPELLANT: I filmed it. HER HONOUR: You'd accept that-- MCAULIFFE [Solicitor for the Crown]: Your Honour sorry may I interrupt and just direct your Honour to the conclusion on p 13, which may summarise. HER HONOUR: Okay, thanks, so you're saying did I film the private parts deliberately or intentionally. Are you suggesting - I don't think you're suggesting that you weren't in control of your hand or your legs walking up the stairs. You're not suggesting you've got some physical difficulty in relation to your hand because there's no evidence of that. APPELLANT: No your Honour if you look at the video again, you will find that 100% of it when the subject is in view, 100% of it is of the outside of her skirt. HER HONOUR: That's what you think I'll find having looked at that do you? APPELLANT: Yeah if you look at the video you will see, if you don't mind me repeating myself, that the outside of the skirt is visible at all times. So it's obviously in, if I may say the obvious-- HER HONOUR: It's the skirt's fault that it flicked up. APPELLANT: Right at the very end usually-- HER HONOUR: Wait, listen to me, are you saying it's the skirt's fault that it flicked up, nothing to do with you walking behind the woman with your pen near the back of her skirt? APPELLANT: Even when the skirt-- HER HONOUR: Answer the question. APPELLANT: Yeah the skirt flicked up, yes. HER HONOUR: You're saying it's the skirt's fault? APPELLANT: I'm saying that even when the skirt flicked back, the outside of the skirt was still visible. HER HONOUR: So what? APPELLANT: So that means that I filmed the woman and not the private parts. HER HONOUR: I see so you're saying you accidentally filmed the private parts? APPELLANT: Or incidentally rather."
Although, in her reasons for judgment, the primary judge said that she made findings based on the evidence before the Local Court (judgment p 2), her Honour's reasons included (p 8) that: "His second explanation is that the filming under the skirt occurred by accident. That is, that he just happened to have his pen camera at the back hem of the woman's skirt and the skirt all by itself flipped up, indicating and agreeing with my suggestion, that it was the skirt's fault that his camera was underneath the skirt. Those explanations are, in my view, simply not credible and I reject them."
As noted above, the DPP accepted that the video evidence did not show that the filming was under the skirt, in the sense that the camera was held under the skirt. The primary judge's finding that the camera was held under the skirt was erroneous, but it was not, merely on that account, a jurisdictional error.
Mr Toth did not agree that it was the skirt's fault that the camera was underneath the skirt. He did not agree that the camera was underneath the skirt. The primary judge used what was wrongly said to be an admission made by Mr Toth in the course of his submissions, but which was not in evidence, as a ground for refusing the appeal.
The primary judge then moved to Mr Toth's submission that there was an implied consent by the woman in question to having been filmed. Mr Toth's submissions in relation to implied consent overlapped with his submissions concerning whether a reasonable person would reasonably expect that his or her private parts could not be filmed. In relation to his submission concerning implied consent there was the following exchange: "HER HONOUR: You mean if people go outside they impliedly consent to being photographed? APPELLANT: No if I may say your Honour implied consent in the sense of when you're outside in the public, you can have no reasonable expectation that you cannot be filmed, implied consent in that respect. HER HONOUR: I see and what's the implied consent for having her backside and the back of her skirt as you say specifically filmed?"
The primary judge asked what were the circumstances that she should take into account when considering whether the woman could be taken "to have consented to you walking behind her with a pen-camera up her skirt?". Obviously if those were the facts there could be no consent, whether actual or implied. Mr Toth's submission, which the DPP accepts is correct, and is in accordance with the magistrate's finding, is that the pen-camera was not "up her skirt".
There were some pages of questioning in relation to the issue of implied consent in which Mr Toth sought to say that because the woman in question was in public she impliedly consented to being filmed or photographed from any angle available to any member of the public with a camera. The primary judge's questioning of Mr Toth on this subject was robust, but the merits of this submission were so exiguous as to invite the scornful observations that the primary judge made.
In his submissions before the primary judge Mr Toth accepted that if the camera was under the woman's skirt then there would have to be a very strong inference that it was done for sexual gratification. There was the following exchange: "HER HONOUR: You concede that do you? APPELLANT: If it was under the skirt, yes. If it was under the skirt I can see of no other inference quite frankly and I'd agree 100%."
Mr Toth then submitted that the magistrate had not accepted Mr Hedderman's version of events. He then submitted: "… I hope my book shows, I try to capture the public viewpoint no more, no less, right. Now with respect the stairs, what - it's a difficult place for a woman and many of them do take counter measures - it's a difficult place for a woman and I tried to capture the public viewpoint. Now if I may stand up, the public viewpoint is this. On the stairs, well the evidence was that my camera was below the hemline and behind the woman, that was the evidence, below and behind, right. Now if you look at the stairs, if you look at - take a picture in mental mind - the people lower down on her and especially at the bottom of the stairs, their eyes would be in exactly the same position as my camera. Their eyes would be below the hemline and behind the hemline right. So I'm trying to capture the public perspective, no more, no less and I'm hoping that my book shows that that's all I'm interested in."
The following exchange then occurred: "HER HONOUR: Even if you were … why would you be doing that? APPELLANT: Right okay then I actually, if I may - right I've sort of thought. HER HONOUR: Think that one through is a good idea I think. APPELLANT: No, no, no, no I've got it here. Why, why the stairs, I'm thinking your Honour that if we take the whole of the evidence, that's - if we take the book in particular - that's really not the issue. My purpose in doing this was to capture in this case women's behaviour in difficult situations, right. Now the stairs are only one difficult situation, right. HER HONOUR: Let's stick to this difficult situation, because this is the difficult situation that you are charged with today in any event. APPELLANT: Yes. HER HONOUR: So my question is again, why film it? APPELLANT: Why film it, to show how women behave. HER HONOUR: To whom? APPELLANT: In public. HER HONOUR: To show in public how women behave? APPELLANT: Yes if I may-- HER HONOUR: No, no, no you may not. APPELLANT: What's that? HER HONOUR: No you may not, so you're saying that you are taking these photographs in order to display them publically [sic], is that what you're telling me? APPELLANT: Well for the book. HER HONOUR: I see so you intend putting these photographs in a book? APPELLANT: Well if I may draw your attention to two photographs, this is pp 66 and 67. HER HONOUR: I see. APPELLANT: This is the sort of thing that I wanted to capture, how women cope right and fashionable skirts are difficult to wear right? Now if you'll notice on p 66, you'll notice the lass is wearing a very short skirt, but underneath the skirt she's got a pair of shorts on. So that when she's walking along like normally, for all intents and purposes she's wearing a short skirt and nobody can see the shorts so. HER HONOUR: You're missing the point of the question sir, right listen carefully. On this particular day, for this particular person on this particular set of stairs, she didn't have shorts on, why is it that you photographed her, you tell me-- APPELLANT: Well I didn't know-- HER HONOUR: No, no, no, you tell me why, you tell me why. APPELLANT: All right to capture women's behaviour in public, I have to just nail it down in a phrase that's got it. HER HONOUR: For your book. APPELLANT: For the book, yes. HER HONOUR: I see, okay so again, why would you call that research if you've already formed a view on that? Why did you need to take another photograph? APPELLANT: Research basically because different women will behave differently, right. HER HONOUR: So you do this a lot do you? APPELLANT: Well no I don't do it at all and prior to starting this book, I haven't done it, right so this is-- HER HONOUR: I see, so answer the question, why on this particular day, this particular woman on this particular set of stairs, was it necessary for you to film her going up the stairs with the pen in the way that you did? APPELLANT: Because I-- HER HONOUR: Are you saying you did it with the intention of putting a picture of her genitalia in your book, is that what you're telling me? APPELLANT: No, not that, no. HER HONOUR: I'm asking you-- APPELLANT: No, the answer is no. HER HONOUR: --what your intention was of this particular day, what is it? APPELLANT: The intention was to capture how women behave. HER HONOUR: Right you've said that to me three times. APPELLANT: Yes. HER HONOUR: This particular woman on this particular day, what was your intention with respect to filming up her skirt that day? Were you going to put it in your book or not? APPELLANT: Well to find out how she behaved because she was in a-- HER HONOUR: Right so you can do that by looking at her. Were you going to put it in your book or not? It's a yes or no question, I was going to put it in my book or I wasn't going to put it in my book, which is it? APPELLANT: The answer to that is I don't know your Honour because I don't know how, whether it was-- HER HONOUR: If it was going to turn out all right. APPELLANT: No I don't know how; if it had any value for my book."
The primary judge's questioning of Mr Toth amounted to a cross-examination, and an unfair cross-examination at that (see paras [73]-[76] below). It did not address the question of whether, on the evidence adduced in the Local Court and the further evidence tendered in the District Court, Mr Toth was guilty of the offence charged. As set out at [37] above, in her reasons for judgment (p 8) the primary judge made findings adverse to Mr Toth on the basis of this exchange.
Further cross-examination followed: "HER HONOUR: Okay so why did you tell the Local Court that it happened by accident? APPELLANT: In, well I did use the word accident. HER HONOUR: You did use the word accident yes, that's my question sir. APPELLANT: Yeah because the skirt flipped back, that was the accident part of it. HER HONOUR: Okay so you were walking up behind her, not attempting to take a picture of her underwear, but attempting to take a picture of the back of her hem and accidentally you took a picture of her underwear, is that what you're telling me? APPELLANT: I was attempting to get the public viewpoint. HER HONOUR: Okay you've told me that three times. APPELLANT: Yes. HER HONOUR: What is the point of getting a public viewpoint of the back of somebody's dress if it doesn't show underwear? APPELLANT: Well it shows how she behaves, it shows whether she takes any protective measures like this woman in the-- HER HONOUR: Listen carefully to the question, what is the point as you say of taking a picture only of the hemline of the woman as she's walking up the stairs, if it's not going to prove any point in relation to your research or book of what people can see from down the bottom of the stairs? What would be the point of that? APPELLANT: Well the point of that is that that's a difficult situation for women who wear fashionable skirts. HER HONOUR: I see. APPELLANT: And to find out how they cope and they all cope differently, I can't put it any other-- HER HONOUR: Right that's interesting to you is it sir? APPELLANT: I've written about these sorts of subjects for a long, long time. HER HONOUR: Well that's what you say, my question is, it's interesting to you sir? APPELLANT: On an intellectual level yes. HER HONOUR: I see, listen carefully, is it interesting to you sir to view women going upstairs and seeing their comfort or lack of comfort when they're wearing short skirts? APPELLANT: No. HER HONOUR: No, it's not interesting to you? APPELLANT: Sorry? HER HONOUR: It's not interesting to you? APPELLANT: Well interesting in an intellectual way. HER HONOUR: Right I see as opposed to what? APPELLANT: As opposed to a sexual gratification way. HER HONOUR: Right so what would the difference be? APPELLANT: Well the difference would be - all right the difference would be is that I want to find out how the morality is changing, how people's behaviour is changing, what people are wearing, what they're doing now that they didn't do ten or 20 years ago. It's a capturing the morality and the change of morality, that's what I find interesting. HER HONOUR: That kind of thing, yes. APPELLANT: And I've written about that for a long time. HER HONOUR: So you say, do you want to have another go at explaining to me why it is that if you had the interest in that way, filming up a woman's skirt is going to assist you in that intellectual pursuit. APPELLANT: First of all, I am not comfortable with the phrase, with all due respect, filming up a woman's skirt."
Later, Mr Toth attempted, without success, to explain his submission that the Crown had not established that the filming was done in circumstances in which a reasonable person would reasonably expect his or her private parts "could not" be filmed. His submission in substance was that this element of the offence was directed to what a reasonable person would reasonably expect could be done as a matter of physical possibility. Whether or not that is the correct construction of s 91L(1) need not be decided. Whether the argument was correct or not it needed to be first understood and then addressed. Regrettably, the transcript and the primary judge's reasons for judgment indicate that this did not happen. The following exchanges occurred: "APPELLANT: Well yes, there was one other matter and that is - that is the - I've got it down here as the fifth element, it may not actually be the fifth element and that is the reasonable expectation that it cannot be done. Now the reasonable expectation and the Crown, essentially this is something that slipped under the radar. HER HONOUR: I'm not quite sure what your mean by reasonable expectation, what are you referring to? APPELLANT: Well one of the elements is that the filming has to be done in circumstances where there can be no reasonable expectation that it cannot be done. HER HONOUR: That it cannot be done? APPELLANT: Yes. … HER HONOUR: Filming done in circumstances which a reasonable person would reasonably expect the person's private parts would not be filmed, is that what you mean? APPELLANT: No that's not the one. … APPELLANT: I've got - I've got the - I've got the s 91L here. HER HONOUR: Goodo. APPELLANT: It says 'Without the consent' et cetera, 'knowing that the - it does not consent' - yeah in the first paragraph 'in circumstances in which a reasonable person would reasonably expect a person's private parts could not be filmed'. HER HONOUR: Would not be filmed. APPELLANT: No could not. HER HONOUR: Would not. APPELLANT: Well it says 'Could not' your Honour. HER HONOUR: Does it okay, well what's your point? APPELLANT: Well the point actually is that has been confused on a number of occasions. I'm sorry if I bring Viney LCM into it, sorry if I bring-- HER HONOUR: Go on, off you go. APPELLANT: Yes but in her ruling, she said that it being the Town Hall station et cetera, et cetera, it's certainly in my - in her-- HER HONOUR: Are you suggesting that reasonable persons would reasonably expect that a person's private parts could or would be filmed at the steps of the Town Hall station? Are you suggesting that reasonable persons would reasonably expect that that is a thing that should or could occur? APPELLANT: Well. HER HONOUR: That's the question sir-- APPELLANT: Yes, yes. HER HONOUR: --you're saying-- APPELLANT: I'd like to know-- HER HONOUR: Listen. APPELLANT: Yeah. HER HONOUR: You're talking about reasonable expectations, this element relates to the reasonable expectations of reasonable people. Are you saying that reasonable people would reasonably expect that a person's private parts could be filmed or would be filmed in the circumstances of the Town Hall station? Are you seriously telling me that reasonable people would think that that's appropriate? APPELLANT: The - the-- HER HONOUR: Doesn't that fly in the face of your application at the commencement of today that reasonable people would be outraged if I found you not guilty? APPELLANT: Yes, yes. HER HONOUR: That's a complete opposite of what you argued earlier in the day. So aren't you then arguing that reasonable people would have every expectation that no filming of a person's private parts would occur in the Town Hall station? APPELLANT: See that's - that's my issue here your Honour, you're using the word would and the prosecutor used the word would, Viney LCM used the word would but that's not what the statute says. It uses the word "Could", which is a very different word. HER HONOUR: I see, are you going to tell me why or are you just going to make it up as you go along?"
What Mr Toth was attempting to do by reference to the reasons of Viney LCM was to draw to the primary judge's attention to Viney LCM's finding that: "Certainly, I accept in the first clip that the skirt does tend to flip back. On the basis that she is climbing a set of stairs and she is not wearing a fitted skirt one would, I would have thought, anticipate that there would be some movement of the skirt as there would with any reasonably loose fitting item when the climbing process is taking place. So, in terms of whether the hand holding the pen has to be physically up and under the skirt for the purposes of this particular filming, I do not accept that that is necessarily the case. I think it is easily anticipated that in a skirt such as the one that he had decided to film the movement of the skirt could well have been anticipated."
The submission Mr Toth was seeking to make was that a reasonable person in the woman's position would not reasonably expect that her private parts could not be filmed as a matter of physical possibility. He repeatedly sought to draw to the primary judge's attention that the statute says "could not be filmed", not "would not be filmed". His submission was that whether reasonable people would think that was appropriate was not the statutory test.
Eventually, Mr Toth was able to draw the primary judge's attention to the passage from Viney LCM's reasons referred to above. Mr Toth's submissions on this subject concluded as follows: "HER HONOUR: What you're talking about here is the expectation of reasonable people. Now Viney LCM might well be a reasonable person but I'm not going to base my test on her, I'm going to base my test on a reasonable person, what a reasonable person would reasonably expect if they are in the Town Hall station steps. APPELLANT: If I-- HER HONOUR: That element - listen to me-- APPELLANT: Yes. HER HONOUR: That element requires the Court to consider whether the circumstances which occurred at that time on those steps at the Town Hall station, whether a reasonable person would expect filming of someone's genitalia to occur. That is the element, that is the question. Do reasonable people at the Town Hall station reasonably expect a person's private parts would be filmed in those circumstances. APPELLANT: That's not what the statute says your Honour. HER HONOUR: Well that's what I'm saying. Do you want to address that issue? APPELLANT: Yes, the - I can only go by the statute and the statute says specifically that-- HER HONOUR: You're missing the point sir. It's not - could or would is not important - it's what a reasonable person expects to occur in that circumstance that's important. APPELLANT: Well that's not - again - that's not what the statute says your Honour. HER HONOUR: Okay. APPELLANT: I, you know, it does say yeah the reasonable person's expectations but the reasonable - the expectations are whether or not it can be filmed or can't be filmed. That's where the reasonable expectations come in, whether it can be filmed or can't be filmed. Now if the skirt is loose, if it flicks back, if it's easily anticipated, then yeah you know no reasonable person would say that it cannot be done. Now it's a terrible thing that it was done, I admit, but nobody can expect that it can't be done. HER HONOUR: Right what else do you want to tell me?
The primary judge dealt with this issue in her reasons for judgment that are set out at [35] above. As noted at [36] the primary judge's transcribed reasons omit words set out at [36].
It may be that there is a good reason to construe the words "could not" as meaning "would not". The primary judge did not provide any reason for so construing the section. An error in construing the section would not by itself amount to jurisdictional error. But reading the transcript as a whole with the reasons for judgment it appears that the primary judge simply did not address the argument that Mr Toth sought to raise. That in itself can be jurisdictional error.
Mr Toth's complaints can be grouped into four categories, any of which, if made out, would constitute jurisdictional error. They are: 1. excessive judicial intervention giving rise to procedural unfairness; 2. apparent bias; 3. misapprehension of the nature or limits of the District Court's functions in hearing an appeal under s 18 of the Crimes (Appeal and Review) Act (Craig v South Australia (1995) 184 CLR 163 at 177; [1995] HCA 58); and 4. failing to address a substantial, clearly articulated argument raised by Mr Toth (Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at [24] per Gummow and Callinan JJ, [95] per Hayne J; NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55], [63]).
In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 ("Concrete") the High Court held that where a complaint is made to an intermediate appellate court of apprehended (or actual) bias on the part of the primary judge, along with other discrete grounds of appeal, the issue of bias should be dealt with first because, if established, it would strike at the validity of the trial and result in an order for a retrial (per Gummow ACJ at [2]; [117] per Kirby and Crennan JJ; cp Callinan J at [172]). In Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 ("Nguyen") Basten JA observed (at [9]) that by extension the same must be true of other alleged grounds of denial of procedural fairness which, if established, would affect the validity of the trial and require a retrial.
In Goodwin v Commissioner of Police [2012] NSWCA 379 Basten JA said (at [17]) that the above comment in Concrete should be understood in the context in which it arose. In Concrete, if the ground of apprehended bias had been made out, there would have had to be a new trial, whereas if the other grounds of appeal were made out, the appellant would be entitled to substantive relief. In the present case, where relief is sought by way of judicial review on the grounds of jurisdictional error, the result of any of the grounds of review being made out would be the quashing of the decision below and the remittal of the matter to the District Court for the proceeding to be determined in accordance with law. In the present case I do not think it is necessary to determine the allegation of apprehended bias.
The issues of apparent bias and procedural unfairness by excessive judicial intervention are distinct. The grounds may overlap, but need not necessarily do so (RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 at [11] per Gaudron ACJ, Gummow, Kirby and Hayne JJ; Nguyen at [35]-[36] per Basten JA; at [228] and [230] per Ward JA).

Procedural Unfairness by Excessive Intervention

Many of the cases concerning excessive judicial intervention were discussed by this Court in Nguyen by Basten JA at [15]-[20] and by Ward JA at [162]-[172]. Whether judicial intervention gives rise to procedural unfairness or an apprehension that there was not a fair trial depends not only on the extent and manner of a judge's intervention, but the nature of the trial and the circumstances in which the intervention occurs. Excessive questioning by a judge of a witness in a criminal trial before a jury (e.g. R v Esposito (1998) 45 NSWLR 442) will be considered differently from the questioning of a witness by a judge in a civil trial by a judge alone (as in Nguyen) and interventions before the case has been developed may be considered differently from close questioning of an advocate (or a self-represented party) in final submissions. In Galea v Galea (1990) 19 NSWLR 263 Kirby ACJ said at 281-282, in a passage quoted by Ward JA in Nguyen at [164]: "3. Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel's shoes and 'into the perils of self-persuasion': see Sir Robert Megarry, 'Temptations of the Bench' (1978) 16 Alta L Rev 406 at 409; see also U Gautier, 'Judicial Discretion to Intervene in the Course of the Trial' (1980) 23 Crim LQ 88 at 95-96 and cases there cited. 4. The decision on whether the point of unfairness has been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. It is important to draw a distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion: see In the Marriage of Lonard (1976) 26 FLR 1 at 10-11; 11 ALR 618 at 626 (FFC); see discussion [1976] ACLD DT 630; cf Ex parte Prentice; Re Hornby (1969) 90 WN (Pt 1) (NSW) 427; [1970] 1 NSWR 654. 5. It is also relevant to consider the point at which the judicial interventions complained of occur. A vigorous interruption early in the trial or in the examination of a witness may be less readily excused than one at a later stage where it is designed for the legitimate object referred to in Jones, namely of permitting the judge to better comprehend the issues and to weigh the evidence of the witness concerned. By the same token, the judge does not know what is in counsel's brief and the strength of cross-examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions: see Yuill (at 185) and Gautier (at 117)."
The present case was an appeal to be determined on the papers together with the additional document tendered on the appeal. Mr Toth handed up detailed written submissions. The primary judge was entitled to clarify and also to test closely Mr Toth's submissions. She was entitled to express her scepticism. Nonetheless, as Kirby ACJ said in Galea v Galea (at 278): "From first to last, from beginning to end, the appearance of an impartial and unprejudiced mind on the part of a judicial officer is of the essence of the system of justice. If at any point there is a loss, in fact or appearance, of that impartiality the trial will therefore miscarry."
In Jones v National Coal Board [1957] 2 QB 55 Denning LJ said (at 63-64): "And it is for the advocate to state his case as fairly and strongly as he can, without undue interruption, less the sequence of his argument be lost: see Reg. v Clewer (1953) 37 CR. App. R. 37."
R v Clewer concerned a judge's interruption of counsel for the defence in counsel's address to the jury in a criminal trial. Although different from the present circumstances, some of the observations of the Court of Criminal Appeal (Goddard LCJ, Byrne and Gerrard JJ) are apposite to the present case. The Court said (at 39-40): "[Counsel's] complaint was that, by reason of the frequency and nature of interruptions by the judge, he never had an opportunity of putting his defence fairly before the jury. No doubt it is sometimes difficult, when the defence is one that appears to the presiding judge, whether a judge of assize, recorder or chairman of quarter sessions, to be fantastic or devoid of merit, to treat it with the same consideration as he would pay to a defence not marked by those characteristics. At the same time, the first and most important thing for the administration of the criminal law is that it should appear that the prisoner is having a fair trial, and that he should not be left with any sense of injustice on the ground that his case has not been fairly put before the jury. If counsel is constantly interrupted both in cross-examination and examination-in-chief, and, more especially as in this case, during his speech to the jury, his task becomes almost impossible."
In a trial or an appeal before a judge alone it is no less important that the accused or the appellant not be left with a sense of injustice on the ground that his or her case has not been able to be fairly put to the judge and fairly understood.
I have set out some, but by no means all, of the judge's interventions above. In Nguyen Basten JA referred to observations of Lord Brown in Michel v The Queen [2009] UKPC 41; [2010] 1 WLR 879 at [31] and [34] in which his Lordship emphasised the importance of a judge's holding the balance between the contesting parties. Basten JA cited with approval Lord Brown's observation that: "[34] Of course he can clear up ambiguities. Of course he can clarify the answers being given. But he should be seeking to promote the orderly elicitation of the evidence, not needlessly interrupting its flow. He must not cross-examine witnesses, especially not during evidence-in-chief. He must not appear hostile to witnesses, least of all the defendant. He must not belittle or denigrate the defence case. He must not be sarcastic or snide. He must not comment on the evidence while it is being given. And above all he must not make obvious to all his own profound disbelief in the defence being advanced.'
Basten JA went on to say: "[18] These statements are not merely aspirational; they describe the judicial function. Nor is the problem necessarily analysed as one involving an appearance of pre-judgment. The idea that the judge must maintain the appearance of impartiality, by maintaining an appropriate degree of detachment, are essential aspects of his or her function as the officer presiding in the court."
That is not to say that every departure from the standard suggested in Michel v The Queen would result in the order of a new trial. In Galea v Galea the interventions and hostility shown to a party did not lead to a finding of procedural unfairness.
Mr Toth complained that the primary judge interrupted his submissions 71 times in the space of less than one hour. He submitted that while some of the interruptions were neutral, many were not. He said that the number of interruptions caused him to lose the thread of his argument. He referred to five occasions in which the transcript records his saying "I'm a little bit lost your Honour", or "I'm a little bit shaky actually, your Honour", or "I'm getting all flustered here, your Honour", or statements to similar effect.
Some of the judge's questioning of Mr Toth went beyond the primary judge's attempting to understand his submission or seeking to demonstrate weaknesses in it that he could address. As noted above much of the judge's questioning amounted to cross-examination that might be expected from a prosecutor if Mr Toth were giving evidence. He was not. Nonetheless, admissions obtained were used against Mr Toth by the primary judge in her reasons for judgment.
The transcript excerpt (quoted at [40]) shows that the primary judge characterised Mr Toth's submission as if he were saying that it was the skirt's fault that it flicked up. Mr Toth submits that he never intimated any such thing and the primary judge was making it sound as if he were blaming the skirt for his predicament.
In response to a submission by Mr Toth that his purpose in filming was for the purposes of a book he was writing and that he was not filming for the purposes of sexual gratification, the primary judge cross-examined Mr Toth (transcript excerpt quoted above at [49]) in a way that prevented Mr Toth from putting his submission, and then cross-examined him on matters that were not the subject of the charge. When pressed to say why he took the photographs, Mr Toth said, that to nail it down in a phrase, it was to capture women's behaviour in public. The primary judge asked "Why would you call that research if you've already formed a view on that? Why did you need to take another photograph?". This was a non sequitur. Mr Toth replied "Because different women will behave differently" and that led to the primary judge asking "So you do this a lot, do you?". Whether Mr Toth did it a lot or not was irrelevant. That led her Honour to ask "Are you saying you did it with the intention of putting a picture of her genitalia in your book, is that what you're telling me?"
Mr Toth rightly complains that this was not a neutral intervention. There had been an earlier exchange: "HER HONOUR: …let's keep in mind what the actual charge is. APPELLANT: Filming the private parts. HER HONOUR: It's filming a person's genitalia without their consent."
This was wrong. "Private parts" is a defined expression that includes a person's genital area or anal area, whether bare or covered by underwear (see s 91I, set out at [3] above). Mr Toth was not charged with filming a woman's genitals and it was unfair for the primary judge to ask whether he was saying that he filmed with the intention of putting a picture of her genitalia in his book.
The further questions of Mr Toth as to whether he was going to put the photograph in his book appear to have been motivated by the issue as to whether or not the filming was done for the purposes of the sexual gratification of another person. In her reasons for judgment (p 7) the primary judge said that she did not rule out that possibility. It was no part of the judge's function to assume the role of prosecutor with a view to establishing an alternative element of the offence. Nor was there any justification for the primary judge's saying that it was a yes or no question and that either he intended to put the photograph in the book or he did not. Mr Toth answered that he did not know. He was then cut off by the primary judge's providing an answer to her own question that he did not know whether it was "going to turn out [alright]". Her Honour appears to have attempted to put in Mr Toth's mouth words that he did not know whether it was going to turn out alright in the sense that he did not know whether the photograph would show the woman's genitals. Her concluding comment "Right I see okay and that's your position is it?" was said with a note of scorn.
I conclude that the questioning of Mr Toth did involve a denial of procedural fairness, and on that ground alone the orders should be quashed.

Apprehended Bias

For the reasons above, it is not necessary to deal with this ground.

Mistake as to Nature and Limits of Jurisdiction

It is also not necessary to deal with this ground. But because the approach of the primary judge involved a serious misconception as to the nature of the appeal, it is desirable to address it.
Under s 18(1) of the Crimes (Appeal and Review) Act the appeal against conviction was to be by way of rehearing on the basis of evidence given in the Local Court proceeding, except insofar as fresh evidence was given by leave pursuant to s 18(2), or a person was directed to attend and give evidence in person pursuant to s 19. No such direction was given under s 19. Accordingly, except to the limited extent that additional evidence was tendered, namely through the tender of Mr Toth's book, the appeal to the District Court was to be determined having regard to the evidence given in the Local Court, including the video. Because the rehearing in the District Court involved a rehearing on the basis of the transcript of evidence in the Local Court, the primary judge was required to observe the "natural limitations" of an appellate court in conducting a rehearing on the record, including the advantage of the magistrate in assessing a witness' credibility (Charara v The Queen [2006] NSWCCA 244; (2006) 164 A Crim R 39 at [19]; McKellar v Director of Public Prosecutions (NSW) [2011] NSWCA 91 at [8]; Dyason v Butterworth [2015] NSWCA 52 at [26] and [27]).
In Dyason v Butterworth McColl JA said: "[26] A s 18(1) appeal is not an appeal de novo: Charara v R [2006] NSWCCA 244; (2006) 164 A Crim R 39 (at [16]-[24]) per Mason P (Kirby and Hoeben JJ agreeing). Although s 18(1) is no longer precisely in the same form as it was when considered in Charara, the amendment does not detract from Mason P's reasoning: B v Director of Public Prosecutions [2014] NSWCA 232 (at [39]) per Beazley P (Barrett JA and Tobias AJA agreeing). [27] The approach to be taken on a s 18(1) rehearing is analogous to that taken to a civil appeal under s 75A of the Supreme Court Act as explained in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [23]): McKellar v Director of Public Prosecutions [2011] NSWCA 91 ('McKellar') (at [8]) per Basten JA (Beazley P and Whealy JA agreeing). The 'judge is to form his or her judgment of the facts so far as able to do so, recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the lower court': Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265 (at [23]) per Beazley JA (Basten and Campbell JJA agreeing). While the Magistrate's reasons are not part of the transcript of evidence, recourse can be had to them on appeal as otherwise the appellate function cannot properly take place: Charara v R (at [23])."
On the hearing of the appeal in the District Court neither the Crown nor the primary judge raised any issue about Mr Toth's relying on additional grounds that had not been relied upon in the Local Court. In this Court counsel for the DPP accepted that it was open to Mr Toth to do so. It is unnecessary to consider this question further.
The point of present significance is that the primary judge did not address the question of whether the magistrate had misused her advantage as the trial judge in not accepting the evidence of Mr Hedderman and, at least by inference, accepting Mr Toth's evidence that at all times his camera was below and behind, but not under, the woman's skirt. The primary judge's cross-examination of Mr Toth referred to earlier in these reasons was not only a denial of procedural fairness, it involved an assessment of Mr Toth's credibility based not on the evidence that he gave, nor, indeed, on his submissions, but on his responses to the primary judge's questions. This was not only irregular, it had no regard to the nature of the appeal with which the primary judge was dealing and the limits on the District Court's functions in determining the appeal. This amounted to jurisdictional error.

Constructive Failure to Exercise Jurisdiction

As noted above, the appeal to the District Court proceeded on the basis that it was open to Mr Toth to rely upon all of the grounds upon which he did rely in asserting that he had not been proven to be guilty of the offence with which he was charged. Mr Toth complained that the primary judge failed to address substantial answers he proffered to the Crown's case. It is unnecessary to deal with all of Mr Toth's complaints in this respect. In at least two respects his complaint is made good. These have been identified earlier in these reasons.
The primary judge did not address Mr Toth's submission that the Crown had not established that his filming of the woman's private parts was deliberate or intentional. This submission raised the question of what was the necessary mens rea requirement for the commission of an offence under s 91L. No argument was advanced by the Crown on the question. There was, for example, no argument as to whether the Crown needed to establish more than that the act of filming was done deliberately, but also needed to establish that Mr Toth intended thereby to film the woman's private parts. There was no argument as to whether recklessness would be sufficient. The issue was simply not addressed. Mr Toth's submission assumed that the Crown needed to establish that he deliberately filmed the woman's private parts. That issue was raised for the primary judge's determination, but was not addressed.
Nor did the primary judge address Mr Toth's submission that a reasonable person in the position of the woman in question would not reasonably have expected that her private parts could not be filmed. The primary judge, rather, proceeded on the basis that that was not the relevant question, but did not address why it was not the relevant question.
Mr Toth made a third complaint that the primary judge did not address his unchallenged evidence that he had written a number of books on public exhibitionism and was working on his upskirting book, that he charged money for the books that he wrote and was paid for them and had university qualifications that qualified him to write on such subjects and that his books indicated intellectual interest in public exhibitionism as opposed to a prurient interest in the subject. He submitted that, as this evidence was unchallenged, the Crown could not establish beyond reasonable doubt that the filming had been made for the purposes of sexual gratification.
But Mr Toth's evidence was challenged to a degree. The cross-examination of Mr Toth in the Local Court in substance challenged his assertion that his reason for the filming was due to his writing of the book. It was put to him, and he agreed, that he did not tell the police that he was filming for the purposes of a book he was writing. The magistrate considered that the photos in the documents tendered in the Local Court, including an abridged version of the book, had not been taken in circumstances similar to the present case and this suggested that the photo was in an entirely different category to photos to be expected to be used in the book. The primary judge did not refer to this finding. Indeed, the primary judge did not refer to any of the findings of the magistrate, this being an indication that she considered that the appeal was to be treated as an appeal de novo. But the primary judge did address Mr Toth's claim that he was taking the photo for the purpose of doing research. The primary judge said (see at [37] above) that Mr Toth was unable to explain why he needed to film the woman in question, having already formed an opinion that young women wear short skirts and sometimes behave in different ways when their underwear can be seen when they are walking upstairs. This rejection of Mr Toth's evidence and submissions that he was filming for the purposes of a book he was writing was, in my view, inadequate to deal with the submission. It was not, on that account, jurisdictional error. Nonetheless, the failure to address the other two submissions did amount to jurisdictional error.

Conclusion and Orders

For these reasons Mr Toth has established that the decision of the primary judge should be set aside for jurisdictional error. I have made no finding of apprehended bias. Nonetheless, the finding that Mr Toth was denied procedural fairness by the primary judge means that the rehearing of the appeal should be before a different judge. Were the same judge to rehear the appeal then a reasonable bystander might reasonably apprehend that the judge might not bring an impartial mind to bear on the issues.
I propose the following orders: 1. Order that the time for commencing these proceedings fixed by r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW), be extended to the date of filing of the applicant's summons. 2. Order that the orders of the District Court made on 22 March 2017 be quashed. 3. Order that the applicant's notice of appeal to the District Court dated 30 May 2016, being an appeal from orders made by Viney LCM on 30 May 2016, be remitted to the District Court to be determined by the District Court as differently constituted and according to law. 4. Order that the first respondent pay the applicant's costs of proceedings in this Court.
BARRETT AJA: For the reasons stated by White JA, the decision of Syme DCJ cannot stand and Mr Toth's appeal to the District Court must be heard and determined anew by a different judge. Orders should be made as White JA proposes.

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: 22 December 2017

Crimes Act 1900(NSW)s 91L

Toth v Director of Public Prosecutions

At a glance

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Judgment (17 paragraphs)

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