Templeton (a pseudonym) v Director of Public Prosecutions (NSW)

1. [1]

   BASTEN JA: On 3 May 2016 the applicant (whose name has been anonymised to prevent disclosure of the identity of her child) was convicted in the Liverpool Local Court of two counts of producing child abuse material under s 91H(2) of the Crimes Act 1900 (NSW) and one count of possessing child abuse material under the same provision. She was convicted and sentenced to a good behaviour bond for two years.

2. [2]

   The applicant appealed to the District Court under the provisions of the Crimes (Appeal and Review) Act 2001 (NSW). The appeal was heard by Culver DCJ on 5 August 2016. The appeal was dismissed and the orders of the Local Court confirmed.

3. [3]

   An appeal can arise only by virtue of statute; there is no right of appeal from a decision of the District Court on appeal from the Local Court in a criminal matter. Further, any exercise of the supervisory jurisdiction of this Court is constrained by s 176 of the District Court Act 1973 (NSW), so that it is not sufficient to identify an error of law on the face of the record as a basis for quashing or setting aside an order of the District Court. It is necessary for an applicant for review under s 69 of the Supreme Court Act 1970 (NSW) to demonstrate jurisdictional error. As explained by Kiefel CJ, Gageler and Keane JJ in Hossain v Minister for Immigration and Border Protection: [1]

4. [4]

   There are three difficulties facing the applicant in the present circumstances. First, although the applicant’s complaints appeared to include complaints about the conduct of proceedings in the Local Court, the “all grounds” appeal to the District Court has resulted in orders of that Court which supersede the orders made in the Local Court. The orders of the Local Court are no longer open to challenge. [4]

5. [5]

   Secondly, the applicant requires leave to bring the proceedings. The judgment of the District Court was delivered on 5 August 2016; the summons in this Court was filed on 14 June 2018. Pursuant to the Uniform Civil Procedure Rules 2005 (NSW), r 59.10(1) proceedings for judicial review must be commenced within three months of the date of the decision. This application was more than 18 months outside that time limit. While the court may at any time extend that period, having regard to the circumstances identified in r 59.10(3), there is no sufficient explanation or justification for extending time in the present case.

6. [6]

   Thirdly, and a factor relied upon in not extending time, the applicant has not been able to establish any arguable basis for reviewing the judgment of the District Court. As explained by Macfarlan JA, that conclusion is based not only on the submissions of the applicant, but also having regard to the submissions for the Director of Public Prosecutions, which gave careful attention to the judgment of the District Court and the manner in which the proceedings were conducted, together with the Court’s own analysis of that judgment.

7. [7]

   The only potential error identified was the reference by Culver DCJ to the appeals being by way of “de novo hearing to determine if the Crown can prove [the charges] beyond reasonable doubt.” In my view there is no error identified, let alone a jurisdictional error, in so describing the proceedings. There are many ways of categorising appeals. Often the labels attached do not have any firm or universal meaning. Frequently the labels are attached in order to distinguish some aspect of a particular appeal from an alternative which may have otherwise appeared to be available.

8. [8]

   In some circumstances, a “de novo hearing” is a phrase used to contrast the appeal in question with an appeal by way of rehearing. Frequently, as for example under s 75A of the Supreme Court Act, an appeal by way of rehearing involves an appeal based on the evidence in the court below, subject to the power of the appellate court to permit further evidence to be given in appropriate circumstances. It also indicates that the law to be applied will be the law in force at the time of the appeal, not at the time of the original trial. Those factors are reflected in s 18 of the Crimes (Appeal and Review) Act, which describes an appeal against conviction as being “by way of rehearing”.

9. [9]

   That is not the sole point of comparison. An appeal by way of rehearing under s 75A involves the appellant demonstrating to the satisfaction of the appeal court that there has either been a specific error on the part of the trial judge, or that there is reason for the appeal court to reach a different conclusion. However, the appeal from a conviction in the Local Court to a judge of the District Court is not an appeal of that kind: rather, the burden of establishing guilt beyond reasonable doubt remains throughout on the prosecutor. In that sense, the District Court proceedings may be contrasted with an appeal by way of rehearing under s 75A. It was in that sense that the trial judge used the term “de novo hearing”; the passage set out above identified on which party, and to what standard, the burden of proof lay on the appeal. There was no error in that description.

10. [10]

    In my view there should be no extension of time and the summons seeking judicial review should be dismissed on that basis.

11. [11]

    MACFARLAN JA: On two occasions between 1 January 2012 and 28 July 2014 Ms Templeton, the applicant, made audio and visual recordings on her mobile phone. The recordings were made at her family home and depicted two separate incidents of a sexual nature involving Ms Templeton’s ex-husband and their son, who was then aged between four months and two years and 10 months. The recordings depicted incidents in the kitchen and main bedroom.

12. [12]

    During the execution of a search warrant at Ms Templeton’s property on 30 July 2014, police seized her laptop computer. It contained a photograph of another incident of a sexual nature involving her ex-husband and son. The photograph had been “deleted” but it remained stored on the computer.

13. [13]

    Ms Templeton was subsequently charged with two counts of “produce child abuse material” and one count of “possess child abuse material”, each contrary to s 91H(2) of the Crimes Act 1900 (NSW). Section 91H is relevantly in the following terms:

14. [14]

    Following her conviction of these offences in the Local Court, Ms Templeton appealed to the District Court, pursuant to s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW). On 5 August 2016 Culver DCJ dismissed the appeal.

15. [15]

    Ms Templeton’s Summons filed in this Court seeks an “inquiry into conviction”. As she has no right of appeal to this Court, the Summons has been treated as an application for judicial review of Culver DCJ’s decision, pursuant to s 69 of the Supreme Court Act 1970 (NSW). For her Summons to succeed, Ms Templeton would in these circumstances have to establish that Culver DCJ committed jurisdictional error (see s 176 of the District Court Act 1973 (NSW); Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [100]; Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240 at [133]-[134]).

16. [16]

    Ms Templeton was self-represented in this Court. As a result, her submissions lacked precision and were at times difficult to follow. Her principal submissions were, first, that she was improperly encouraged to participate in an electronically recorded interview (an “ERISP”) on 29 July 2014, on the basis that she was a volunteer and was not warned that what she said could be used in proceedings against her. Secondly, she submitted that the District Court should have found that the “public benefit” defence, provided for in s 91HA of the Crimes Act, was available to her. Section 91HA is relevantly in the following terms:

17. [17]

    Ms Templeton’s remaining, more particular, grounds are referred to below.

18. [18]

    For the reasons given below, Ms Templeton’s application for judicial review should be dismissed with costs.

Ms Templeton’s background and convictions

1. [19]

   Ms Templeton was born in Russia and moved to Australia in 2009. She married her ex-husband at the end of 2009 and their son was born in 2011. Towards the end of 2013 or the beginning of 2014, Ms Templeton and her ex-husband separated.

2. [20]

   On 28 July 2014 Ms Templeton’s son attended a child care centre whilst Ms Templeton was at a TAFE College. Without her authority, her ex-husband collected their son from the centre at about 12.00pm and did not return him there until about 5.00 to 5.30pm on the same day. Later that day, Ms Templeton attended the local police station, where she informed police officers that she was concerned about her son’s safety. She gave them a USB stick which contained the two video recordings referred to at [11] above.

Ms Templeton’s ERISP

1. [21]

   As noted above, Ms Templeton participated in an ERISP on 29 July 2014. She was interviewed by Senior Constable Karen Valente and Detective Senior Constable Ellen Beckett.

2. [22]

   Before commencing the interview, Constable Valente cautioned Ms Templeton, stating “I want you to understand that you’re not obliged to say or do anything you don’t wish to do … But whatever you say or do will be electronically recorded as the interview takes place on this machine” (ERISP transcript p 2). Constable Valente then sought to ensure that Ms Templeton was participating in the interview voluntarily and asked a series of questions for that purpose (ERISP transcript p 2-3).

3. [23]

   Constable Valente then advised Ms Templeton of her legal rights, in particular of her right to speak to a lawyer (ERISP transcript p 3). After confirming that she had spoken to, and received advice from, a legal aid solicitor, the following exchange occurred:

4. [24]

   In response to Ms Templeton’s concerns, Constable Valente said that:

5. [25]

   Constables Valente and Beckett did not at any time during the ERISP indicate to Ms Templeton that her “status” had changed from that of a volunteer to a suspect.

6. [26]

   At the conclusion of the ERISP, Ms Templeton agreed that she had participated in it of her own free will, that no “threat, promise or offer of advantage [had] been held out to [her] to give the answers recorded [in it]” and that she did not have any complaints “about the manner in which [she was] interviewed” or against the police officers that had interviewed her (ERISP transcript p 103).

7. [27]

   The ERISP transcript was admitted into evidence during the Local Court hearing by consent. The Agreed Facts, which were tendered, annexed a copy of it and they stated that she had voluntarily participated in the ERISP.

The Local Court proceedings

1. [28]

   The Local Court hearing took place over a number of days before Acting Magistrate Abood. On the first day, 18 May 2015, Ms Templeton was represented by Mr Harrison of counsel. On that day, the Crown tendered the Agreed Facts by consent, pursuant to s 191 of the Evidence Act 1995 (NSW) (Transcript p 8).

2. [29]

   On the second day, 4 August 2015, Ms Templeton was represented by different counsel, namely, Dr Ginges. One of the reasons that Dr Ginges proffered to the Court for this change of counsel was that Ms Templeton “wasn’t happy with the process which led to the preparation and tendering of what constitutes the document of agreed facts” (Transcript p 3). Dr Ginges then sought to make a number of amendments to the Agreed Facts. He said that:

3. [30]

   Dr Ginges submitted that the “best way” of “dealing with” Ms Templeton’s complaints about the Agreed Facts was to allow him to “call some fresh evidence from [Ms Templeton] in respect of the matters that she says are not accurately represented in those agreed facts” (Transcript p 4).

4. [31]

   His Honour responded by stating that “[i]f there were issues that [Ms Templeton] wants to address in her agreed statement of fact … I would think you’d need to lead that from her[. W]hether or not I accept what she’s putting at the end of the day will be a matter for me” (Transcript p 9). Ms Templeton then gave evidence which included reference to the Agreed Facts.

5. [32]

   In his judgment of 3 May 2016, his Honour acknowledged that “there is no doubt that the evidence clearly established that [Ms Templeton] during the time of her marriage … was the victim of domestic violence”. He found however that:

   1. (1)

      Ms Templeton knowingly produced the two video recordings;

   2. (2)

      What was recorded in the videos was “of a sexual nature”;

   3. (3)

      There was no evidence that Ms Templeton took the subject photograph but it was located in and recovered from her laptop, and that that established possession;

   4. (4)

      ‘It is clear evidence that after the recordings were made [but before 28 July 2014] there were several contacts [by Ms Templeton] with police over various complaints that she had made concerning her husband over domestic violence and other issues but nothing was said or produced in respect of these matters” (that is, she did not tell police about the video recordings or photograph) and

   5. (5)

      “… some of her answers given in the record of interview and the evidence she gave in Court were inconsistent and on occasions she was evasive”.

6. [33]

   His Honour then found that the:

7. [34]

   By judgment of 5 August 2016, Culver DCJ dismissed Ms Templeton’s “all grounds” appeal. Her Honour stated that the appeal was a “de novo hearing” and noted that the evidence before the Local Court was tendered before her as an exhibit.

8. [35]

   Her Honour rejected Ms Templeton’s submission that the subject video recordings and photograph were not “child abuse material”, as that term is defined in s 91FB of the Crimes Act.

9. [36]

   In respect of Ms Templeton’s reliance on the “public benefit” defence (see [16] above), her Honour referred to the alleged “public benefit” as being that “the appellant has brought to the attention of the authorities the conduct of the father”. After acknowledging that Ms Templeton was the subject of domestic violence, her Honour found however that the evidence, including Ms Templeton’s delay in providing the video recordings to the police, resulted in the defence not being available to Ms Templeton.

The ERISP

1. [37]

   Ms Templeton submitted that she was improperly encouraged to participate in the ERISP on the basis that she was a volunteer, as distinct from a person under suspicion, and that she was not properly warned that what she said in the ERISP might be used against her in court proceedings.

2. [38]

   The ERISP transcript records that Ms Templeton was cautioned at the beginning of the interview (see [22] above). Although the caution did not extend to a warning that anything she said in the interview could be used against her in court proceedings, such a warning was not necessary in the circumstances that obtained.

3. [39]

   Section 122 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”) identifies circumstances in which a caution must be given, as well as the nature and content of that caution:

4. [40]

   At the time of the ERISP, Ms Templeton was not an “arrested person”, nor was there any evidence in the proceedings to indicate that she was a “protected suspect”. In the course of the interview, Constable Valente told Ms Templeton that she would be informed if her status changed from that of a volunteer to a suspect. There is no evidence in the ERISP transcript, or elsewhere, to indicate that such a change in status occurred. As a result, the caution given was not deficient by reason of s 122 of LEPRA. Nor was there any evidence to found a conclusion that the absence of a full caution rendered the ERISP transcript as improperly obtained evidence for the purposes of ss 138 and 139 of the Evidence Act 1995 (NSW).

5. [41]

   Furthermore, this Court was not referred to any part of the ERISP transcript which supported a submission by Ms Templeton that she was induced to participate in the ERISP by a representation by police that it would assist her to regain custody of her son. Neither the ERISP transcript nor that of the Local Court proceedings records any complaints by Ms Templeton that she was induced to take part in the interview by any such representation. Moreover, her counsel did not seek to adduce any evidence on that topic in the District Court appeal. On the contrary, the ERISP transcript recorded that Ms Templeton was willing to cooperate with the interviewing police officers and that she told Sergeant Dodd, at the conclusion of the interview, that she had no complaints concerning it (see [26] above). As well, the Agreed Facts tendered in the Local Court recorded that she participated in the ERISP voluntarily.

6. [42]

   In any event, it is difficult to see how Ms Templeton’s position was prejudiced by the admission of the ERISP transcript into evidence in circumstances where she had signed the Agreed Facts and had subsequently given oral evidence. Acting Magistrate Abood considered what was put on behalf of Ms Templeton on the second day of the hearing concerning the Agreed Facts (see [29]-[31] above), but nevertheless continued to proceed on the basis that they were in evidence before him. Ms Templeton was bound by the conduct of her counsel and she has not demonstrated that any exceptional circumstances existed which might require a different conclusion (see Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [9]; R v Birks (1990) 19 NSWLR 677 at 683-684).

7. [43]

   Ms Templeton also submitted to this Court in this regard that it was during the ERISP that she provided her address to police and that this enabled them to execute a search warrant at her property, but it cannot be assumed that the police would not otherwise have been able to ascertain her address.

8. [44]

   No error has therefore been established. In any event, even if the errors alleged were established, they would not be jurisdictional errors. Ms Templeton’s first argument should therefore be rejected.

“Public benefit” defence

1. [45]

   In respect of the availability of the “public benefit” defence under s 91HA(3) of the Crimes Act, Ms Templeton submitted that it was necessary for her to make the video recordings because otherwise the police would not have believed her when she complained about her ex-husband’s conduct, and would not therefore have taken action against him.

2. [46]

   In support of this submission, she referred this Court to a COPS entry created on 26 January 2001 at 1.47am and submitted that it confirmed that the police attitude was that they would have to “catch him in the act”. It relevantly stated:

3. [47]

   Also, in support of her submission, Ms Templeton referred this Court to threats against her life that her ex-husband had made in his ERISP. (The date of the ERISP is unknown, but what is known is that his arrest occurred on 31 July 2014.) It is not clear whether Ms Templeton knew about these threats at the time that she supplied the video recordings to the police (on 28 July 2014) but she certainly did not know of the them when the video recordings were made.

4. [48]

   Acting Magistrate Abood and Culver DCJ accepted that Ms Templeton’s ex-husband subjected her to domestic violence. Ms Templeton contended that that violence was a motive for her making the video recordings and providing them to the police. However, Culver DCJ dealt with this contention, finding that it did not assist her in establishing the “public benefit” defence. Noting s 91HA(5) of the Crimes Act, which provides that “a person’s motives for engaging in the conduct” the subject of a s 91H(2) offence are irrelevant to deciding whether the conduct was to the public’s benefit, her Honour then stated:

5. [49]

   As no error in the primary judge’s conclusion or reasoning has been identified, this ground also fails.

The subject photograph

1. [50]

   Ms Templeton emphasised to this Court that the photograph that was on her seized computer had been deleted and contended that she had not used it or been aware of it. Moreover, she submitted that she had shared custody of the computer with her ex-husband and that it was likely that he had taken the photograph. She submitted that as a result she should never have been charged with, and convicted of, possession of the photograph.

2. [51]

   Acting Magistrate Abood however was well aware that the photograph had been deleted and he had before him Ms Templeton’s evidence that she had not taken the photograph and that her ex-husband had accessed and regularly used her laptop (Transcript p 28-29, 33).

3. [52]

   Nevertheless, his Honour convicted Ms Templeton. Any error in doing that was an error within jurisdiction and accordingly not such as to attract judicial review.

Opportunity to adduce further evidence

1. [53]

   Grounds 3, 4, 5, 8 and 9 of Ms Templeton’s Summons complain that certain police statements and other “documents”, including an expert certificate dated 11 August 2014 of Dr Shamino Ramoo of the Liverpool Hospital Sexual Assault Centre, as well as other evidence that was adduced in related children’s court proceedings, were not tendered in the Local Court and that police officers and other witnesses were not called or questioned there. Moreover, in her oral submissions to this Court, Ms Templeton contended that she had wanted to put Constable Valente’s written statement before the District Court and would have liked the opportunity to cross-examine other police officers involved in her charge and arrest, but had been unable to do so as the District Court did not hear the matter de novo.

2. [54]

   As the respondent submitted, there was no error in the prosecution proving its case in the Local Court by tender of the Agreed Facts, which Ms Templeton, who was legally represented, had signed. That approach precluded witnesses being called to prove those facts (see s 191(2) of the Evidence Act). Moreover, in the District Court proceedings, in which Ms Templeton was also represented, her counsel made no application to adduce fresh evidence nor was any direction sought that a witness be called (see Crimes (Appeal and Review) Act, ss 18 and 19).

3. [55]

   In this respect, as in others, Ms Templeton was bound by the conduct of her legal representatives (see the authorities noted at [42] above). She was not able to demonstrate that there were any exceptional circumstances that indicated that that principle should not be applied in respect of the subject of the present submissions.

4. [56]

   I add the following in relation to certain aspects of the material to which Ms Templeton referred:

   1. (1)

      In her written statement, Constable Valente said that Ms Templeton participated in the ERISP voluntarily. This was against Ms Templeton’s interests.

   2. (2)

      Whilst Dr Ramoo’s expert certificate recorded that Ms Templeton’s son had not sustained any physical injuries as a result of the subject offending, the opinions he expressed in his expert certificate would not have been binding on the Court and did not disprove any element of the charged offences. Moreover, as the expert certificate was available prior to the commencement of the prosecution of Ms Templeton, her legal advisors had ample opportunity to put the expert certificate before the magistrate or the District Court judge. Clearly, they chose not to.

   3. (3)

      Ms Templeton submitted that material put before the Children’s Court, including multidisciplinary expert reports concerning the impact of the subject offending on her son, should have also been put before the District Court. She did not however make clear to what documents she was referring or how they would have assisted her to defend the charges against her.

Orders

1. [57]

   For the reasons given above, Ms Templeton’s Summons should be dismissed with costs.

Other matters

1. [58]

   In the course of her oral submissions to this Court, Ms Templeton explained the impact that her convictions have had on her life. In particular, she said that her consequent registration on the NSW Child Protection Register, established under the Child Protection (Offenders Registration) Act 2000 (NSW), prevented her from raising her son in a proper and adequate fashion. As she was found guilty of more than one registrable offence (s 14A(1)(b)(ii) of the Act), she will be subject to the restrictions imposed by the Act for 15 years from the date of her convictions.

2. [59]

   In light of a children’s court finding that she is a fit person to be responsible for the upbringing of her son and the restrictions that the Act effectively imposes on her in fulfilling that task, the Act appears to have a harsh operation in her case, arguably precluding her from bringing her son up in a normal fashion. Regrettably there is no avenue open to this Court to ameliorate this position.

3. [60]

   MEAGHER JA: I agree with Basten JA.