Tua v Commissioner of NSW Police [2021] NSWSC 1159 | Case summary

Supreme Court of NSW|2021-09-10|Before: Lonergan J, Latham J

Judgment

These proceedings were commenced by Summons filed on 16 July 2021, (followed by an Amended Summons filed on 18 August 2021), seeking judicial review of an order made in the Local Court at Newtown on 28 July 2020 that Felix Tua "comply with the reporting obligations under the Child Protection Offenders Registration Act 2000 (NSW)" ("CPOR Act").
There was no controversy between the parties that the order made on 28 July 2020 was infected with jurisdictional error and should be determined by this Court to be void and of no effect and should be quashed.
Nor was there any controversy that consequential orders and sentencing decisions that were made after that order were affected by the jurisdictional error. Accordingly, the consequential relief sought should be allowed and Mr Tua's remaining matters be returned to the Local Court for resentencing.
The matter was able to be dealt with expeditiously. Focussed written submissions of counsel, Mr Coady, combined with a thorough and informative affidavit of Mr Fernandez plainly demonstrated the merits of the issues raised.
Proposed Consent Orders were provided to Chambers on 9 September 2021 and a Court Book on 10 September 2021. Having considered the affidavit material and written submissions, I made those orders in Chambers on 10 September 2021 without the need for a formal hearing. These are my reasons for making those orders.

Plaintiff's submissions

Mr Coady argued that His Honour's decision was infected by jurisdictional error in that he failed to apply the statutory meaning of "a risk to the lives or sexual safety of children", because he failed to make reference to the critical requirement in s 3AA(1) and failed to take into account mandated relevant considerations set out in s 3AA(3).
There was also a constructive failure to exercise jurisdiction because his Honour's Reasons failed to undertake any genuine assessment or analysis of the risk posed to children by Mr Tua.
It was submitted additionally and in the alternative that first, the Reasons were inadequate in that they failed to reveal the path of reasoning leading to the conclusion and second, the decision was legally unreasonable in that no reasonable decision-maker would have made that decision.

Defendants' position

The second defendant, the Local Court of NSW, entered a submitting appearance on 9 September 2021.
Counsel for the Commissioner of Police, Ms Davidson, instructed by the Crown Solicitor's Office, properly conceded that there was jurisdictional error. Consent Orders signed by both active parties reflecting that position were provided to the Court on 9 September 2021.

Consideration and Decision

I do not need to deal with the secondary arguments as it is clear that jurisdictional error has been established due to his Honour's failure to take into account the necessary considerations and make the necessary findings required by s 3(2) and s 3AA of the CPOR Act.
I adopt and entirely agree with the analysis of Fagan J in O'Neill v Commissioner of Police [2020] NSWSC 1805 as to the mandatory aspects of the legislation that must be actively considered and properly and clearly articulated in the Court's Reasons when making such an order: "[10] Given that an order under s 3E gives rise to these enormous restrictions on liberty and privacy of the registrable person and that an application for such an order may originate from an offence that is no more serious than a traffic violation, the constraint provided in s 3AA of the Act assumes very great importance. That section is as follows: 3AA Risk to sexual safety of children - meaning (1) For the purposes of this Act, a person poses a risk to the lives or sexual safety of one or more children, or of children generally if there is a risk that the person will engage in conduct that may constitute a Class 1 offence or a Class 2 offence against or in respect of a child or children. (2) In order for a court to be satisfied that a person poses a risk to the lives or sexual safety of one or more children, or of children generally, it is not necessary for the court to be able to identify a risk to particular children, or a particular class of children. (3) A court is to take the following into account in determining whether a person poses a risk to the lives or sexual safety of one or more children, or of children generally - (a) the seriousness of each registrable offence committed by the person, (b) the age of the person at the time each of those offences was committed, (c) the age of each victim of each of those offences at the time that the offence was committed, (d) the seriousness of any other offences committed by the person, (e) the impact on the person if the order being sought is made compared with the likelihood that the person may commit a registrable offence, (f) any other matter that the court considers to be relevant. [11] The considerations listed in sub-s (3) are mandatory. They must be taken into account in determining whether the respondent to an application under s 3E "poses a risk to the lives or sexual safety of one or more children or of children generally". [12] Section 3AA makes it clear that the enquiry under s 3E(2)(a) about whether the person poses a risk to children is not at large but is constrained and directed by the statute. It shows that a conclusion as to the existence of a risk cannot be drawn lightly. The first three considerations listed in s 3AA, pars (a), (b) and (c), contemplate that the respondent has been proved beyond reasonable doubt to have committed an offence against a child or children. As earlier mentioned, a conviction for such an offence is not a prerequisite to the making of an order under s 3E. However, the fact that three out of six mandatory considerations are directed to cases where the respondent has been so convicted is a clear indication that, in other cases, the contention that a respondent is a threat to children would have to be based upon something stronger than a police officer's speculation or suspicion. The remaining considerations under s 3E(3) are to be construed, applied and weighed having due regard to their context, juxtaposed with considerations (a), (b) and (c). For example, the "seriousness of any other offence" referred to in par (d) must be measured with particular regard to whether any such other offence involved a child victim, which is the focus of pars (a), (b) and (c). A drug possession charge or a driving infringement, as in the present case, could not be regarded as "serious" within the meaning of par (d), given its context."
The fatal problem with the Reasons articulated by the learned Magistrate is that first he made no reference or finding at all in respect of s 3AA(1). In my view that is a "gateway" finding and without that, his Honour's order is invalid, infected by jurisdictional error.
Further, there was an absence of reference to s 3AA(3) factors mandated by the word "is" in the context of what the Court "is" to take into account to make the necessary determination under s 3AA(1). These were not articulated at all and, as I have already noted, no finding under s 3AA(1) was stated. Having regard to the requirements of s 3(2) of the CPOR Act, the necessary pre-condition for the order was not met. The order must be quashed.
It follows that the orders made and sentences imposed by other judicial officers in the Local Court after 28 July 2020 are infected by that error and must be set aside.
The matters set out in the affidavit of Mr Fernandez explain and justify the extension of time sought in respect of leave to appeal the subsequent convictions and leave is granted to appeal those convictions.
The conviction on 7 October 2020 for the offence of failing to comply with the reporting obligations under the CPOR Act is set aside, as is the sentence imposed on that date, as are the convictions and sentences imposed on 25 May 2021.
The parties elected to have the remaining matters remitted to the Local Court for re-sentence under s 55(2)(c) of the Crimes (Appeal and Review) Act 2001 (NSW).

Orders

The following orders were made: 1. Pursuant to rule 59.10(2) of the Uniform Civil Procedure Rules 2005, extend the time to commence judicial review proceedings in respect of the decision identified in order 2 below, to 16 July 2021. 2. Quash the decision of the second defendant on 28 July 2020 to make an order in respect of the plaintiff under s 3E(1) of the Child Protection (Offenders Registration) Act 2000. 3. Note: The first defendant consents to the order on the basis that the second defendant failed to apply the correct statutory test, having regard to ss 3AA and 3E(2) of the Child Protection (Offenders Registration) Act 2000, and thereby fell into jurisdictional error. 4. Pursuant to r 51B.5(3) of the Supreme Court Rules 1970, extend the time to seek leave to appeal in respect of the convictions and sentences identified in orders 5, 6 and 8 below, to 16 July 2021. 5. Pursuant to s 54 of the Crimes (Appeal and Review) Act 2001, grant leave to appeal against the convictions and sentences identified in orders 5, 6 and 8 below. 6. Pursuant to s 55 of the Crimes (Appeal and Review) Act 2001, set aside the conviction of the plaintiff on 7 October 2020 for an offence of failing to comply with reporting obligations under s 17(1) of the Child Protection (Offenders Registration) Act 2000 (being sequence 1 recorded on Court Attendance Notice H 75117244). 7. Pursuant to s 55 of the Crimes (Appeal and Review) Act 2001, set aside the aggregate sentence imposed on the plaintiff by the second defendant on 7 October 2020. 8. Remit the matter to the Local Court for sentence in respect of the plaintiff's convictions which were dealt with by way of aggregate sentence on 7 October 2020 (other than in respect of sequence 1 recorded on Court Attendance Notice H 75117244). 9. Pursuant to s. 55 of the Crimes (Appeal and Review) Act 2001, set aside the convictions and sentences imposed on the plaintiff by the second defendant on 25 May 2021 for offences of failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (being sequences 1-5 recorded on Court Attendance Notice H 347139994). 10. The Amended Summons filed on 18 August 2021 is otherwise dismissed. 11. There be no orders as to costs. 12. Vacate the hearing date listed for 13 September 2021.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 September 2021

Child Protection Offenders Registration Act 2000(NSW)

Tua v Commissioner of NSW Police

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