Burton v R; Katelaris v R

1. [1]

   THE COURT: Following a trial by jury over which Harris DCJ (the trial judge) presided, Paul Burton and Andrew Katelaris (the appellants) were convicted of offences against s 105(2) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Act), which relevantly prohibits the publication or broadcast in a form that may be accessible by a person in New South Wales of the name of a child with respect to whom proceedings before the Children’s Court are brought within the meaning of s 105(1)(b) of the Act.

2. [2]

   The charges in the indictment, each of which resulted in a conviction in respect of the publication or broadcast of CWS’s name were as follows:

3. [3]

   Mr Burton seeks leave to appeal on the following grounds:

4. [4]

   Mr Katelaris relied on all grounds raised by Mr Burton but also seeks leave to appeal on the following ground:

5. [5]

   Grounds 1, 2 and 7 raise a question of law alone and therefore do not require leave but Mr Burton requires leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) in respect of grounds 3-6. Given the existence of a right of appeal with respect to at least some of the grounds, Mr Burton and Mr Katelaris will be referred to as the appellants.

The trial

1. [6]

   The trial commenced on 30 October 2024. The jury returned guilty verdicts on each count on 13 November 2024. On 22 November 2024, the trial judge imposed a $250 fine in respect of each of counts 1-4 ($1,000 in total) on Mr Burton and a fine of $500 on Mr Katelaris for count 5.

2. [7]

   Each count of the indictment presented at the commencement of the trial on 30 October 2024, on which each of the appellants was arraigned, was in the following terms for each count:

3. [8]

   Section 105 of the Act relevantly provides:

4. [9]

   The charges in the present case were brought under s 105(2) of the Act.

5. [10]

   The prosecutor informed the trial judge, prior to opening, that he had provided a copy of his opening to the accused. He referred to the publication or broadcast “in any form accessible to a person in New South Wales” as an element of the offence which the prosecution had to prove beyond reasonable doubt. This is relevant to grounds 1 and 2.

6. [11]

   In 2017, Mr Burton and Mr Katelaris were associated with the Ubuntu church and Ubuntu Wellness Centre in Newcastle. At that time, CWS, a four-year-old child had serious health conditions, including severe epilepsy and cerebral palsy. In early 2017, both appellants became associated with CWS’s parents. In April 2017, CWS and his parents travelled to Newcastle from Queensland following an amber alert with respect to CWS.

7. [12]

   On 19 May 2017, CWS was removed from the care of his parents pursuant to an order made by a delegate of the Secretary of the Department of Family and Community Services (FACS) under s 43(1) of the Act, which was made on the ground that CWS was at immediate risk of harm (because he had critically low levels of potassium consistent with malnutrition). Mr Burton was present at the Ubuntu Wellness Centre when CWS was removed from his parents.

8. [13]

   On 24 May 2017 proceedings in respect of CWS were commenced in the Children’s Court. On 25 May 2017, the Children’s Court made interim orders that CWS remain in the care of the Minister.

9. [14]

   On 16 June 2017, Catherine Samuels, the then Director of Child Protection and Legal Services at FACS, was asked to advise about Facebook posts posted by the appellants referring to CWS.

10. [15]

    On 27 June 2017 at 8.27am, Ms Samuels sent an email to Mr Burton on behalf of FACS and requested that he urgently remove, within 24 hours of receipt of the email, a number of Facebook posts in which CWS was referred to by name. She drew his attention to s 105 of the Act and informed him that he was liable to prosecution under that section.

11. [16]

    On 27 June 2017 at 11.19am, Mr Burton responded by email, saying that he was “hugely relieved that someone has finally contacted [him]”, had “removed all posts that are in breach” and was “happy to do all [he could] to comply with this information now it has been provided to [him]”.

12. [17]

    On 4 July 2017, Mr Burton posted a message to his Facebook page entitled “Eulogy” which said in part:

13. [18]

    The post included a video of events on the day on which CWS was removed from his parents in which CWS was shown and named. The video concluded with the following written statement:

14. [19]

    On 6 July 2017 at 6.28am, Ms Samuels sent Mr Burton an email concerning his Facebook post of 4 July 2017 and informed him that the post was a breach of s 105 of the Act. She said, in part:

15. [20]

    On 6 July 2017, Mr Burton uploaded to his Facebook page a video in which he discussed CWS and the correspondence from Ms Samuels. Mr Burton mentioned CWS by name during the video including when he said, “7 weeks since we’ve, since [name of CWS] has any physical contact that I’m aware of with his family”.

16. [21]

    Mr Burton also said in the video:

17. [22]

    On 9 July 2017 at 4.42pm, Mr Burton emailed a written statement dated 7 July 2017 to Ms Samuels in which he said in part:

18. [23]

    On 11 July 2017, Mr Burton posted on his Facebook page the statement which he had sent by email to Ms Samuels on 9 July 2017 in which CWS was identified by name.

19. [24]

    On 11 July 2017, Mr Burton posted a live video to his Facebook page in which he read out his statement to Ms Samuels. In the video, Mr Burton identified CWS by his full name, including in the statement:

20. [25]

    He also mentioned that he attended the Children’s Court that day. Further, Mr Burton said “all I ever humbly asked in this matter was that at the very least, this family be somehow reunited with their child in hospital until this case was completed and their innocence or guilt determined”.

21. [26]

    On 10 July 2017 at 10.48am, Ms Samuels sent an email to Mr Katelaris, attaching a letter dated 7 July 2017 which sought the “urgent removal” of certain Facebook posts and informed the recipient that s 105 of the Act prohibited the publication of the name of a child with respect to whom proceedings before the Children’s Court had been brought. She informed Mr Katelaris that “[p]ublications, including public social media posts, made in breach of s.105 may be liable to prosecution”.

22. [27]

    On 11 July 2017, Mr Katelaris posted a message to his Facebook page which began, “Dear Facebook friends”. Mr Katelaris then published the above letter from Ms Samuels and told his followers “[o]n a matter of such [i]mportance relating to the care of children I have no intention of adhering to this censorship”. The post identified CWS by name on numerous occasions, including the following:

23. [28]

    Each of the appellants gave evidence and was cross-examined about the reason for posting the messages and videos.

24. [29]

    The following exchange occurred in Mr Burton’s cross-examination:

25. [30]

    The following exchange occurred in Mr Katelaris’ cross-examination:

26. [31]

    The appellants gave the following evidence about the timing of the posts.

27. [32]

    On 6 November 2024, while Mr Burton was giving evidence, the jury sent a note which, relevantly, posed the following questions:

28. [33]

    In the summing up on 13 November 2024, the trial judge answered each of these questions in the negative. These answers are the subject of challenge in grounds 4 and 5. A different issue relating to dates is separately raised in ground 6.

29. [34]

    The defence case closed on Friday 8 November 2024. For the balance of the day, in the absence of the jury, there was discussion between bar and bench, including about the defences which would be left to the jury. The appellants submitted to the trial judge that the following defences ought be left to the jury: necessity, self-defence, duress and honest and reasonable mistake of fact. The Crown submitted that the defences did not arise on the evidence and therefore ought not be the subject of directions to the jury. The trial judge allowed the appellants to put any further written submissions by 10am on Sunday 10 November 2024 and indicated that a ruling would be made on Monday 11 November 2024.

30. [35]

    On Sunday 10 November 2024, Mr Burton sent an email to the Court in which he said that the indictment “left out the element of being able to be seen in NSW”. It was common ground that this was a reference to the words in s 105 that the name of a child “must not be published or broadcast in any form that may be accessible by a person in New South Wales”. During the course of the day, the Crown responded to the email by submitting that there was no error in the indictment.

31. [36]

    On Monday 11 November 2024, the ninth day of the trial, Mr Burton expanded on the written submissions he had emailed the previous day in support of his contention that the indictment was invalid and that, accordingly, the jury ought be discharged. The trial judge invited Mr Burton to identify any prejudice which would flow if her Honour were to allow the indictment to be amended.

32. [37]

    The Crown responded by submitting that the indictment did not need to be amended because it alleged the offence charged and the appellants had received ample notice of the case they had to meet by reason of the terms of s 105(2) and the Crown Case Statement. In the alternative, the prosecutor applied to amend the indictment pursuant to ss 20 and 21 of the Criminal Procedure Act 1986 (NSW).

33. [38]

    Mr Burton replied at length to the prosecutor’s submissions.

34. [39]

    On 11 November 2024, after hearing submissions, the trial judge granted leave to the Crown to amend the indictment and gave ex tempore reasons for her order.

35. [40]

    In her ex tempore reasons, the trial judge noted that the prosecutor had opened the Crown case to the jury on the basis that it needed to prove beyond reasonable doubt the element that the publication or broadcast of CWS’s name was “in a form accessible to a person in New South Wales”. Her Honour described the omission to allege this element in the indictment as a “defect”. Her Honour also said:

36. [41]

    On 11 November 2024, the accused were arraigned on the amended indictment. Each pleaded not guilty to the charge or charges. Each charge on the amended indictment was in the following form:

37. [42]

    Also on 11 November 2024, the trial judge ruled that none of the defences raised by the appellants arose on the evidence and, accordingly, no directions regarding them would be given to the jury. Her Honour gave detailed ex tempore reasons for the ruling.

38. [43]

    In respect of self-defence, her Honour said:

39. [44]

    In response to the submission that CWS had been unlawfully deprived of his liberty within the meaning of s 418(2)(b) of the Crimes Act 1900 (NSW), the trial judge found:

40. [45]

    The trial judge said, of relevance to the defence of necessity:

41. [46]

    The Crown’s closing address included the following:

42. [47]

    In his closing address, Mr Katelaris made submissions which were highly critical of the judiciary, the law and of s 105 of the Act in particular. He invited the jury to acquit him on the basis that the law was a bad one. He repeated the substance of this submission at the conclusion of his closing address (see below).

43. [48]

    Before his submissions had concluded, the trial judge directed the jury as follows:

44. [49]

    This direction is the subject of ground 7.

45. [50]

    At the conclusion of his closing address, after the trial judge had directed the jury as set out above, Mr Katelaris said:

The grounds of appeal

1. [51]

   Each of grounds 1 and 2 concerns the amendment to the indictment, which the trial judge allowed after the close of the defence case and immediately prior to the commencement of the Crown address.

2. [52]

   Mr Burton argued that the absence of an essential element meant that the original indictment was a “nullity” and therefore could not be amended. Mr Katelaris adopted his submissions.

3. [53]

   The question whether an indictment is a nullity is a question of law. Accordingly, leave to appeal in respect of grounds 1 and 2 is not required.

4. [54]

   The identification of the essential factual ingredients of a charge is one of the purposes of an indictment: John L Proprietary Limited v The Attorney-General for the State of New South Wales (1987) 163 CLR 508 at 519; [1987] HCA 42. Exceptions include murder and statutory alternatives to offences charged. The importance of identifying the elements of each count is such that a consequence of failing to do so may lead to the quashing of the indictment and, in some cases, to the quashing of a conviction.

5. [55]

   For example, in Lodhi v R [2006] NSWCCA 121; (2006) 199 FLR 303 (Lodhi), this Court (Spigelman CJ, McClellan CJ at CL and Sully J agreeing) granted leave to appeal against the dismissal by a trial judge of the appellant’s challenge to the indictment presented against him and, instead, quashed the indictment. One of the bases of the appellant’s successful challenge was that the indictment failed to state the essential elements of the offence charged. The appeal in Lodhi, it should be noted, was brought prior to conviction.

6. [56]

   However, a conviction based on an indictment where an element of the offence has not been alleged in the indictment may stand if, for example, the proviso in s 6(1) of the Criminal Appeal Act (which entitles this Court to dismiss an appeal if it “considers that no substantial miscarriage of justice has actually occurred”) is applied. Whether the proviso can be applied will depend on the nature of the defect. The failure to allege an offence in the indictment may be of itself a “substantial miscarriage of justice” such that the proviso cannot be applied. In circumstances where the charge in an indictment is insufficiently pleaded so that it does not invoke the jurisdiction of the court, the resulting trial is commonly described as a “nullity”. In R v Swansson; R v Henry (2007) 69 NSWLR 406; [2007] NSWCCA 67, this Court held, by majority, that the proviso could not be applied to a trial that was, in fact, a nullity.

7. [57]

   Doja v R [2009] NSWCCA 303; (2009) 198 A Crim R 349 (Doja) was a case in which, despite the failure to properly plead the elements of two counts in the indictment, the proviso was available. In Doja, counts 13 and 14 of the indictment charged offences under s 178BB of the Crimes Act (obtaining money by false or misleading statements). These offences required proof that the accused knew that the statements were false or misleading in a material particular or that the statements were made with reckless disregard as to whether they were true or false or misleading in a material particular. The two counts did not contain an averment of this essential element in that they were expressed without reference to the accused’s knowledge or reckless disregard of the truth. Neither the trial judge nor trial counsel detected the oversight at the trial. The appellant argued that the verdicts on those counts, and therefore the convictions, were invalid.

8. [58]

   This Court dismissed the appeal. The majority, McClellan CJ at CL (Grove J agreeing), held that the appellant was properly convicted whether by common law doctrine or the application of the proviso (it considered that no substantial miscarriage of justice had actually occurred). Spigelman CJ agreed with the Chief Judge that the case was an appropriate one for the proviso although his Honour also considered that the averment of the mental element was necessarily implied and that the defect was “formal” for the purposes of ss 16 and 17 of the Criminal Procedure Act.

9. [59]

   Of present relevance, McClellan CJ at CL said at [158]–[159]:

10. [60]

    The question for this Court is whether the trial judge had power to allow the original indictment, which did not allege an element of the count, to be amended to add that element. That in turn depends on whether the indictment, prior to its amendment, was sufficient to invest the court with jurisdiction. For the reasons which follow, the trial judge was authorised to allow the amendment.

11. [61]

    Section 20 of the Criminal Procedure Act relevantly provides:

12. [62]

    Section 21 of the Criminal Procedure Act relevantly provides:

13. [63]

    At common law, an indictment could not be amended: Maher v The Queen (1987) 163 CLR 221 at 230 (Mason CJ, Wilson, Brennan, Dawson and Toohey JJ); [1987] HCA 31. Thus, whether an indictment can be amended turns on the breadth of any power conferred by statute to permit the Court to grant leave to amend an indictment.

14. [64]

    The common law position was changed in the United Kingdom by the Indictments Act 1915 (UK) which, in s 5, authorised the amendment of an indictment. The evident purpose of the provision was to overcome the technicalities of the common law rules of criminal pleading: R v Pople [1951] 1 KB 53 at 54 (Humphreys, Finnemore and Slade JJ).

15. [65]

    Whether an amendment to an indictment is authorised depends on the wording of the statute which confers the power of amendment. Sections 20 and 21 of the Criminal Procedure Act confer power on the court to amend a “defective” indictment: see Doja at [159] and the discussion in Tonari v R [2013] NSWCCA 232; (2013) 237 A Crim R 490 (Tonari) at [89]-[95] (Johnson J). This power may include a power to rectify the omission of an element of the offence in the count as charged in the original indictment.

16. [66]

    An amendment to an indictment to add an allegation of an element of the offence charged is to be distinguished from a case such as R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281 where s 126 of the Criminal Procedure Act required that an indictment be signed by particular persons and the indictment presented was not signed by any one of the persons authorised by the statute: see Doja at [159]. In that case, the indictment was held to be invalid, the conviction was set aside and a re-trial ordered.

17. [67]

    The question in the present case thus turns on two related questions. First, whether the indictment in its original form was invalid, and secondly, if not, whether it could be amended without injustice.

18. [68]

    With respect to the first question, we are of the view that the indictment, prior to amendment, was valid and the District Court was thus invested with jurisdiction: s 130(2) of the Criminal Procedure Act. The formulation of the charges were, at best for the appellants, imperfect formulations of known offences: see Attorney General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299; (2013) 239 IR 102 (Built); Doja at [22] (Spigelman CJ). Expressed differently, any defect was not a fundamental failure rendering the indictment a nullity: Tonari at [84]-[85] (Johnson J).

19. [69]

    In Tonari (at [84]-[93]), Johnson J (Price and R A Hulme JJ agreeing) provided the following overview of the distinction between mere defects and fundamental failures:

20. [70]

    An example of a case where the defect was such as to deprive the court of jurisdiction can be found in Built. Built was an appeal pursuant to s 5C of the Criminal Appeal Act against an order in the District Court dismissing two summonses against Built NSW Pty Ltd alleging contraventions of s 8(2) of the Occupational Health and Safety Act 2000 (NSW). The appeal was brought in the context of summary proceedings, as was the case in Rockdale Beef Pty Ltd v The Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 (Rockdale Beef), to which the decision refers. The principles in Rockdale Beef (and by necessary implication, those in Built) were found by the majority in Doja to be “of more general application”.

21. [71]

    The first summons was in the following terms (with the second summons being in the same terms but naming a different individual in relation to the alleged contraventions):

22. [72]

    Bathurst CJ (Beazley P and Hoeben CJ at CL agreeing) held that the offence disclosed in the summonses was not known to law, and therefore the summonses were not saved by s 16(2) of the Criminal Procedure Act, nor were they capable of amendment pursuant to s 21 of the Criminal Procedure Act. His Honour observed, at [138], that it was “not a case where what has occurred is that an essential element has been left out which can be cured without procedural unfairness to the defendant: Rockdale Beef”, nor, at [142], a case in which there may have been “some slip or clumsiness which upon a strict analysis results in an ingredient of the offence not being the subject of a proper averment”, citing Broome v Chenoweth (1946) 73 CLR 583 at 601; [1946] HCA 53.

23. [73]

    Bathurst CJ said (at [138]-[143]):

24. [74]

    While Built does assist in setting an outer limit as to what will or will not constitute a valid statement of a charge, it is also helpful to contrast the circumstances that pertained there with the present case. In Built it was not apparent which of the multiple offences under the relevant act was intended to be charged. Here, there was no such lack of clarity.

25. [75]

    In the present case it was clear that the appellants were charged with offences against s 105(2) of the Act. Each charge alleged the relevant appellant either did “publish” or “broadcast” the name of a relevant child (that is, a child to whom s 105(1)(b) applied). The only complaint raised by the appellants is that the charges did not include the words “in any form that may be accessible by a person in New South Wales”. These are not words taken from s 105(2) which creates the offence. Rather, those words are from s 105(1)(b) and are, in effect, definitional, in the sense they give meaning to “publish” or “broadcast” for the purposes of the offence provision. Further, insofar as the words are definitional, they are one dimensional and can, in this regard, be contrasted with the multifactorial definitions with which this Court was concerned in Lodhi. (It is, additionally, not to be forgotten in this context that Lodhi was concerned with whether the indictment was defective, not with whether it was sufficient to found jurisdiction.) Having regard to the simple nature of the offence, and what was necessarily required to establish publishing or broadcasting (that is, that it was done in a form accessible by a person in New South Wales), the present was a case where there can have been “no misunderstanding as to the basis upon which the Crown asserted that the offences” were committed: Doja at [160]. Indeed, there is considerable force in the Crown’s primary submission in the Court below that there was no defect because it was clear from the indictment that the publication or broadcast had to be in a “form that may be accessible by a person in New South Wales”. This submission appears to have been based on s 16(1)(b) of the Criminal Procedure Act, which relevantly provides that an indictment is not “bad, insufficient, void, erroneous or defective … for want of an averment of any matter … necessarily implied”.

26. [76]

    We are of the view that the indictment, in the form it was in prior to amendment, was sufficient to invoke the jurisdiction of the District Court.

27. [77]

    Accepting the District Court was properly invested with jurisdiction, the next (albeit related) question was whether the indictment, as originally presented, could be amended “without injustice”. As Mr Burton drew the trial judge’s attention to the defect in the original indictment and the amendment did not require any further evidence to be adduced either by the Crown or by Mr Burton and would not have altered the course of the evidence, there was no arguable prejudice.

28. [78]

    Accordingly, the amendment was properly made. The original indictment, though found to be defective prior to the amendment being allowed, was not a nullity. For these reasons, neither ground 1 nor ground 2 has been made out.

29. [79]

    We note that, in respect of grounds 3-6, Mr Burton has repeated the allegation that the indictment was invalid. As this submission has been rejected in the consideration of grounds 1-2, it need not be revisited.

30. [80]

    The appellants submitted at trial that the trial judge ought leave the following defences to the jury: self-defence, necessity, duress and honest and reasonable mistake of fact. As referred to above, the trial judge ruled that none of these defences arose and that therefore the jury would not be directed about any of these defences. There is no challenge to the trial judge not leaving duress to the jury but Mr Burton challenges her Honour’s decision not to leave the other defences to the jury.

31. [81]

    In Huynh v The Queen [2013] HCA 6; (2013) 295 ALR 624, the High Court held at [31] that:

32. [82]

    The prosecution has an onus to negative all defences sufficiently raised: King v The Queen (2003) 215 CLR 150; [2003] HCA 42 at [52] (Gummow, Callinan and Heydon JJ).

33. [83]

    In Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14 (Braysich) at [32], French CJ, Crennan and Kiefel JJ said, citing Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 at [83] (McHugh J):

34. [84]

    The High Court in Braysich articulated the relevant test at [36] as follows:

35. [85]

    Each of the defences raised by the appellants in support of their grounds of appeal will be addressed in turn.

36. [86]

    Mr Burton relied on s 418 of the Crimes Act, which relevantly provides:

37. [87]

    This Court (Adams J, Hislop J and Newman AJ) articulated the relevant test by reference to self-defence in R v Burgess; R v Saunders [2005] NSWCCA 52; (2005) 152 A Crim R 100 at [23]:

38. [88]

    It follows that Mr Burton had an evidential burden in relation to the propositions that:

    1. (1)

       he believed that the publication/broadcast of the name of CWS was necessary to defend CWS or terminate the unlawful deprivation of his liberty; and

    2. (2)

       his conduct in publishing/broadcasting the name of CWS was a reasonable response in the circumstances as he perceived them.

39. [89]

    The first matter is subjective, albeit that where unlawful deprivation of liberty pursuant to s 418(2)(b) is relied on, the deprivation of liberty must be unlawful (and not just believed to be so). The second matter is to be assessed objectively: see Oblach v R (2005) 65 NSWLR 75; [2005] NSWCCA 440 at [59]. In order to discharge these evidential burdens it was necessary that Mr Burton adduce or point to evidence that suggested those matters as a reasonable possibility.

40. [90]

    The chronology set out above indicates that CWS was taken into the care of FACS on 19 May 2017. The first post in respect of which he has been charged was dated 4 July 2017. The posts which were the subject of charges make wide-ranging complaints about several topics which extend beyond CWS.

41. [91]

    The evidence adduced, taken at its highest, was manifestly insufficient to cause a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence of self-defence had been negatived by the prosecution. Insofar as the appellants may have had a subjective belief that CWS had been kidnapped and thus unlawfully deprived of his liberty, this was not sufficient to discharge the evidentiary burden with respect to s 418(2)(b). There was no evidence CWS had been unlawfully detained.

42. [92]

    Insofar as the appellants sought to rely on s 418(2)(a), no tenable connection between the publication/broadcast of CWS’s full name and any need to “defend” him is evident from the evidence. Even if it could be assumed the appellants held the necessary subjective belief (which may be doubted), there is no basis on which the response could be said to have been a reasonable response to the circumstances as they perceived them. We are not persuaded that any error has been shown in the trial judge’s ruling that she would not leave the defence of self-defence to the jury.

43. [93]

    The defence of necessity is confined to circumstances where there is a threat of death or serious injury that cannot otherwise be avoided and the only way for the accused to avoid that death or serious injury was to disobey the law: Veira v Cook [2021] NSWCA 302; (2021) 293 A Crim R 569. This Court in Veira v Cook held that the applicant was not entitled to respond to threatened harm based on their own value judgment as to how that harm may be weighed against harm involved in their unlawful conduct.

44. [94]

    In Rogers v R (1996) 86 A Crim R 542, Gleeson CJ said of the defence of necessity at 546:

45. [95]

    In the present case, the question for the trial judge was whether the evidence raised as a reasonable possibility that Mr Burton believed, on reasonable grounds, that publishing/broadcasting CWS’s full name was the only way of protecting CWS from death or serious injury; that his conduct was a reasonable response to the danger; and that publishing/broadcasting CWS’s full name was necessary to protect CWS.

46. [96]

    Given the lack of logical connection between publishing/broadcasting CWS’s full name and protecting him from death or serious injury, there was no proper evidentiary basis on which to leave the defence of necessity to the jury.

47. [97]

    The trial judge held that the defence of honest and reasonable mistake of fact was available in respect of a charge pursuant to s 105(2) of the Act. A mistake of fact will only provide a complete defence to a charge if the fact, if true, would render the accused innocent of any criminal offence: Bell v State of Tasmania (2021) 274 CLR 414; [2021] HCA 42 (following Bergin v Stack (1953) 88 CLR 248; [1953] HCA 53) at [12]-[13] (Kiefel CJ and Keane J); [31] (Gageler J); [46] (Gordon and Steward JJ); and [93] (Edelman and Gleeson JJ).

48. [98]

    In this Court Mr Burton submitted that he honestly and reasonably believed that either the Children’s Court or the Secretary had consented to the full name of CWS being published: s 105(3)(b)(i) and (iii) of the Act. He alleged that several media outlets had published and broadcast CWS’s name in full and that, in those circumstances, he was entitled to, and did, reasonably believe that consent had been given, thereby rendering the publication or broadcast of CWS’s name lawful.

49. [99]

    These submissions were not reflected in the oral evidence Mr Burton gave at trial or the correspondence he sent at the relevant time. In his correspondence (as set out above), Mr Burton exhibited a blatant disregard for the law, which he criticised in strong terms. He positively invited prosecution by acting in contumelious disregard of s 105 of the Act, in circumstances where the consequences of publishing or broadcasting CWS’s name had been pointed out to him in unequivocal terms by FACS.

50. [100]

    The only other basis raised was that Mr Burton believed that CWS was dead. Had CWS died, the prohibition against publication or broadcast in s 105 of the Act would no longer have applied: s 105(3)(b)(iv) of the Act. However, in his evidence, Mr Burton said that he thought that CWS “could be dead” and was “hopeful that he wasn’t”. This evidence did not rise as high as saying that Mr Burton believed that CWS was dead.

51. [101]

    Taking Mr Burton’s evidence at its highest, there was no basis for the trial judge to leave the defence of honest and reasonable mistake of fact to the jury.

52. [102]

    For the reasons given above, ground 3 has not been made out.

53. [103]

    The jury note to which this direction was responsive is referred to above.

54. [104]

    Mr Burton submitted that he removed the posts on 13 July 2017 (the Crown disputed this proposition at trial) and that he was therefore entitled to be acquitted on the basis that he had abided by a warning and had complied with the law. The factual issues concerning this submission need not be explored.

55. [105]

    The offence under s 105(2) of the Act is complete at the time of publication or broadcast. Accordingly, whether the publication is removed or the broadcast deleted is irrelevant to whether an offence under s 105(2) has been committed. While an offender’s conduct after the commission of the offence may bear on matters relevant to sentencing (remorse, contrition, prospects of re-offending and the like), it does not bear on whether the commission of the offence has been established.

56. [106]

    No error has been shown. The trial judge’s answers to the questions posed were correct. The ground has not been made out.

57. [107]

    At 4.56am on 13 November 2024, the day on which the summing up was due to commence, Mr Burton sent an email to the trial judge and to the prosecutor in which he submitted that time was of the essence and that, accordingly, the Crown had to prove the precise date of each of the posts. This was raised on 13 November 2024 in the absence of the jury. Her Honour rejected his submission and said, in the course of exchanges with Mr Burton:

58. [108]

    In the present case, the date which was essential was the date on which the proceedings in the Children’s Court were filed, which was 24 May 2017. The Facebook posts post-dated that date. The evidence summarised in the table above accords generally (within a day or two) with the dates of publication or broadcast alleged by the Crown in the indictment. In these circumstances, no error has been shown in the trial judge’s orthodox directions to the jury, which complied with the law. This ground has not been made out.

59. [109]

    In support of ground 6, Mr Burton submitted that the prosecution was brought for an improper purpose because the prosecution had not shown that the privacy of the child was affected by the charged conduct or that the child suffered any stigma as a result.

60. [110]

    It is not an element of an offence under s 105(2) of the Act that the Crown prove harm to the child concerned or that the child’s privacy was affected. Thus, the presence or absence of either of these matters could have no bearing on whether the offences charged had been committed. These matters, even had they been established, provided no proper basis on which the trial judge could have dismissed the indictment.

61. [111]

    This ground has not been made out.

62. [112]

    This ground was relied upon by Mr Katelaris. We did not discern that it was also relied upon by Mr Burton but if we are incorrect as to this matter, our reasons for rejecting this ground apply equally to him.

63. [113]

    While the Crown may appeal against a directed verdict of acquittal under s 107 of the Crimes (Appeal and Review) Act 2001 (NSW), it has no right of appeal against a conviction ordered following a jury’s verdict of not guilty. Thus, a jury is entitled to return a verdict of not guilty on a perverse basis (namely a basis which does not accord with the law) in the sense that the Crown cannot appeal from such a verdict. By contrast, if a jury’s verdict of guilty is unreasonable, the offender may appeal to this Court on the ground that the verdict is unreasonable: s 6(1) of the Criminal Appeal Act.

64. [114]

    However, it does not follow from the circumstance that a jury may return a verdict which does not accord with the law that a trial judge ought lend force to a submission that a jury may return a verdict otherwise than in accordance with the law. Indeed, the purpose of directions given by a trial judge to a jury is to ensure that the jury complies with the law when deliberating and returning a verdict. The assumption is made, unless the contrary is demonstrated, that the jury applies and acts in accordance with the trial judge’s directions: Demirok v The Queen (1977) 137 CLR 20 at 22 (Barwick CJ); [1977] HCA 21. The role of the jury is to be the tribunal of fact (see The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ)) and the role of the trial judge is to be the tribunal of law. Where counsel or a litigant in person misstates the law, the trial judge is entitled, and generally obliged, to rectify the misstatement, either by inviting the person who made the misstatement to withdraw it in front of the jury or by a direction, or both.

65. [115]

    Mr Katelaris’ closing submission to the jury amounted to a submission that the law was wrong and that, because it was wrong, the jury did not need to apply it to him and that they should, accordingly, acquit him. The trial judge did not require him to withdraw the submission. Accordingly, the ground, in terms, has not been made out since Mr Katelaris made the very submission which he alleges in ground 7 he was not permitted to make. But if, as we apprehend, the gravamen of Mr Katelaris’ submission is that the trial judge was not entitled to direct the jury that they were bound to apply the law and to act on the evidence before them in coming to a verdict, it must be rejected.

66. [116]

    Ground 7 has not been made out.

Leave to appeal

1. [117]

   As referred to above, leave to appeal is not required in respect of grounds 1, 2 or 7. However, we are disposed to grant leave in respect of the remaining grounds, in the interests of finality.

Proposed orders

1. [118]

   For the reasons given above, we make the following orders:

   1. (1)

      Grant leave to appeal on grounds 3, 4, 5 and 6.

   2. (2)

      Dismiss the appeal.