Burton v Director of Public Prosecutions

On 12 February 2024, Paul Robert Burton (the plaintiff) filed an amended summons in this Court naming the New South Wales Director of Public Prosecutions (“the DPP”) as the first defendant, and the Local Court of New South Wales as the second. That summons sought the following orders:

The plaintiff, who has been self-represented at all stages of litigation that has extended over many years, relied upon the following grounds for that relief:

Speaking generally, the summons is an attempt to resist criminal charges that have been pending against the plaintiff for many years.

The majority of the orders sought impugn the committal for trial of the plaintiff that was ordered by Magistrate Stone sitting in the Local Court of NSW at Newcastle on 20 October 2023.

The exception is proposed order 3, which seeks to have the entirety of the proceedings dismissed, despite the fact that they are now pending in the District Court of New South Wales at Newcastle, a bill of indictment having been found by the DPP on 16 November 2023, and a hearing having been conducted in that Court with regard to the pending trial on 14 October 2024.

The background of the matter is recounted in many judgments of many courts; all of those that are digitally available (to my knowledge) may be found here: Burton v Secretary, Department of Family and Community Services [2019] NSWCA 21; Burton v Local Court of New South Wales [2019] NSWSC 191; Burton v The Office of the Director of Public Prosecutions [2019] NSWDC 120; Burton v Office of the Director of Public Prosecutions [2019] NSWCA 245; Burton v Secretary, Department of Communities and Justice [2020] NSWCA 68; Burton v Babb [2020] NSWCA 331; Secretary, Department of Communities and Justice v Paul Robert Burton [2021] NSWSC 1285; Burton v Director of Public Prosecutions (NSW) [2021] NSWSC 1230; Burton v Secretary, Department of Communities & Justice (formerly Family and Community Services) [2022] NSWCA 7; Burton v Director of Public Prosecutions [2022] NSWCA 242; Burton v Babb [2023] NSWDC 103; Burton v Babb [2023] NSWCA 242.

To sketch that background for the convenience of the current reader, and focusing on the issues pertinent to the resolution of the summons: on 19 May 2017 a child was removed from the care of the parents of the child.

As demonstrated by digital evidence placed before me, the plaintiff was present on that occasion, assertedly concerned about the alleged injustice of that removal.

Shortly afterwards, he allegedly posted material to the Internet that identified the child.

On 25 May 2017, an initial hearing about the child took place in the Children’s Court of New South Wales.

At 8:26 PM on 27 June 2017, an email was sent from a person associated with the authorities to an email address associated with the plaintiff. In a nutshell, the email warned the plaintiff to remove his online posts because he could well be committing a criminal offence.

A similar email was sent to the address associated with the plaintiff at 6:28 PM on 6 July 2017.

In response to the first email, the plaintiff seemingly sent an email at 11:19 AM on 27 June 2017, in which he indicated an appreciation of the force of that first email, by way of the following words:

On 4 July, 6 July, and on two occasions on 11 July 2017, the plaintiff allegedly posted material to the Internet that identified the child.

Those four actions on his part are currently alleged by the DPP to have constituted offences against s 105 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the offence-creating provision”). (There are also wholly summary offences contained on a certificate pursuant to s 166 of the Criminal Procedure Act 1986 (NSW) (“the CPA”) that have been sent to the District Court, but they were not the focus of the hearing before me).

At the time of the alleged postings, the offence-creating provision was as follows:

On 7 July 2017, the plaintiff seemingly sent a letter to a person associated with the authorities. It includes the following;

I interpolate that, at the hearing before me, the position of the plaintiff was that he had, in fact, acted to the contrary of his own contemporaneous written words, and “took those posts down because I didn’t want to be charged with anything”: at Hearing Transcript page 27 line 36; hereafter, HT 27.36.

On 21 December 2017, the plaintiff was charged with a number of offences, as follows:

As I have said, the vast bulk of the orders, grounds, and submissions of the plaintiff attacked the committal proceedings. The parties were agreed in the Local Court and before me that the committals regime that pertained to the plaintiff was that which existed before the commencement of the Justice Legislation Amendment (Committals and Guilty Pleas) Act 2017 (NSW) on 30 April 2018, pursuant to the transitional provision of that amending legislation. For that reason, I set out the salient provisions about committal proceedings in the CPA – the most important of which are s 62 and s 64 – as they were on 29 April 2018:

Before recounting and resolving the submissions of the plaintiff in support of each ground, I should set out a number of legal problems in his approach to the matter, with which he could not or would not engage at the hearing before me.

First, as I have shown above, a bill of indictment has been found by the DPP and filed in the District Court. It is well-established that that executive function is separate from, and not dependent upon, the outcome of a committal. And that includes a committal conducted under the “old system”, as here, which did indeed provide something of a filtering process.

It is always the case that, even if a person is committed for trial, or indeed for sentence by a Magistrate, the DPP retains the right not to proceed further with the proceedings, by way of “no-billing” them. Conversely, discharge of the defendant at committal does not fetter the DPP: an ex officio indictment is open to that office, and the trial of that indictment proceeds in the superior court.

In other words, the detailed assault upon the correctness and appropriateness of the decision of the Magistrate is legally ill-conceived, for the simple reason that it has been overtaken by events. Indeed, if I were to make any of the orders sought in the summons (leaving aside proposed order 3), they would be futile, if not inapposite. To repeat: that is because events have moved past the Local Court, and the office of the DPP has exercised its right to find and file an indictment against the District Court, which is accordingly seized of jurisdiction to resolve the dispute between the Crown and the plaintiff by way of a trial. In short: the committal process has been superseded.

If authority for the above is required, it is to be found in Sergi v DPP (NSWCA unreported, 10 September 1991) at 4:

The plaintiff could not or would not engage with this fundamental problem at the centre of this application for relief. The issue having been relied upon by the DPP, and raised with him more than once at the hearing, the extent of his response was to point to judgments from Australia and overseas that discuss difficult questions about the kinds of error that render proceedings a nullity, void, or voidable (at HT 14 ff). But they do not answer the fundamental issues about supersession and inutility that arise here.

Nor was he able to point to any case from any Australian or common law jurisdiction in which, a bill of indictment having been found and presented to a trial court, a superior court has granted judicial review pertaining to a committal, and ordered that a fresh committal occur.

In short, because of this central issue, even if I was satisfied that there was any legal error attending the committal process or decision, I would refuse to make any order as a result, because of the lack of utility in doing so.

And if I would be wrong in that approach, I would contingently refuse to make any order in any event, as an exercise of discretion, for the same general reason.

Another issue with which the plaintiff could not effectively engage is the inappropriateness of proposed order 3. As can be seen, that order is not founded on an attack on the committal; it is much broader than that, and proposes that I put an end to these criminal proceedings in their entirety.

But there is nothing placed before me to suggest that I should take that course; it would only be done in the most exceptional circumstances; in my opinion, there is nothing whatsoever to suggest prosecutorial misconduct; it would be a matter for a judge of the court seized with jurisdiction to hear the trial to determine whether there is any basis upon which to refuse to exercise jurisdiction; and the plaintiff has indicated that he proposes to attack the indictment in the District Court in any event.

Again, the most that could be said by the plaintiff in support of proposed order 3 (at HT 38.24 ff) was that the offences are not serious, they have no victim, “no crime whatsoever” has been committed, the prosecution goes against the underlying purpose of the offence-creating provision, it is founded on false and misleading information, and there are some psychological and tactical reasons as to why the plaintiff may have acted as he allegedly did.

But some of those propositions in my opinion are incorrect, some of them are highly contestable, and some of them may, perhaps, be relevant to any sentence. None of them constitutes a basis for proposed order 3.

The third and final issue that was, with respect, misapprehended by the plaintiff was his belief that, as a self-represented person standing his trial before a jury of twelve citizens, he will be at liberty to do or say what he wishes, in an effort to have those citizens return a verdict of acquittal.

But that, with respect, is wrong: at trial he will be permitted to conduct himself generally in accordance with the rules of procedure; to tender evidence (including from himself) that is admissible and not to tender evidence that is inadmissible; to rely upon “defences” or other exculpatory matters that reasonably arise on the evidence; and to present a final address confined to correct statements of the law and of the evidence and issues for determination placed before the jury.

To the extent that any of the specific submissions of the plaintiff summarised below, and based on misconceptions about any or all of the above, are rejected, I have done so, and will not burden the reader with repetition with regard to each of them.

Due to the number of grounds, and the arguments made in support of them, I believe that the most convenient way to set out my response to the submissions of the plaintiff is to deal with each ground seriatim, discussing the oral submissions of the plaintiff (which I regard as his final position about the reasons why I should grant the relief sought) under the rubric of each of them. Thereafter, I shall immediately provide my response to each, rather than discussing my reasons at a later stage of this judgment. At the end, I shall set out my response to some miscellaneous submissions that do not fit readily under any ground.

As for ground one, it is an overarching submission which is reflected in the detail of the latter grounds and their arguments. For that reason, I shall not deal with it on its own. This ground does not succeed as some form of “catch-all”.

The same may be said about ground two, and I shall approach it in the same way.

And in any event, in order to obtain relief of the kind sought in the summons, the plaintiff must establish legal error, not factual. This ground must fail.

As for ground three, the argument was that the Magistrate failed to analyse the asserted underlying purposes of Parliament in creating the offence under discussion.

But the simple response to the submission is that that kind of analysis is not the role of a Magistrate conducting a committal, even pursuant to what I call the old system.

By way of unrelated example, a Magistrate conducting a committal to do with an allegation of breaking, entering, and stealing is not (and was not) called upon to consider the underlying sociological reasons, based upon respect for private property in our society, as to why larceny is an offence. Nor is a Magistrate called upon to reflect upon why breaking into premises and committing a serious indictable offence inside them is seen to be more grave than simply committing the serious indictable offence in itself.

The Magistrate here was called upon to apply to the evidence placed before the Local Court the statutory tests to be found in sections 62 and 64, as they were until May 2018. That is what his Honour did.

This ground must be rejected.

Ground four was explained to be founded on the proposition that the Magistrate needed to be satisfied that the removal of the child from the parents was lawful. The submission was that the removal was in fact grossly unlawful.

But this submission is founded on a misconception, and a reading into the offence-creating provision words that are not there.

It is not incumbent upon the prosecutor in proceedings for this offence to prove that the original removal of the child was lawful.

By way of broad analogue, in proceedings for breaching a statutory prohibition on promulgating the identity of a complainant in sexual assault proceedings, the prosecution does not need to prove that the evidence of the complainant was true, and led to a conviction, in the putative adult or child sexual assault trial.

This ground is rejected.

This ground was not the subject of oral submissions in chief by the plaintiff, although it was dealt with briefly in reply.

It seemed to be focused on the matters set out in subsection (3)(b)(i) – (iv) of the offence-creating provision, and perhaps subsection (1A) as well, provided by me at [16] of this judgment.

The submission at its highest was that there was no affirmative evidence that (for example) the child was still alive at the time of the alleged publications, with the result that the plaintiff should have been discharged at committal.

It was also said that the child had, in fact, asked the plaintiff to be his “voice”.

In the alternative, the submission was that the applicant may have committed an honest and reasonable mistake of fact with regard to any of these excluding factors, with the result that he should have been discharged on that basis as well.

But, in my respectful opinion, the primary submission misunderstands the evidential onus attaching to carveouts or exclusions in an offence-creating provision (as opposed, of course, to elements of an offence).

There was no evidence placed before the Magistrate that gave rise to any reasonable possibility of any of these excluding factors existing as a matter of objective fact. Accordingly, the prosecution was not required to disprove them at either statutory phase, even assuming (for the sake of argument only) that the prosecution bore that onus.

As for the ancillary position, it is true that, once sufficient evidence of it is raised, an asserted honest and reasonable mistake of fact must be dis-proven beyond reasonable doubt by the prosecution in a trial of a strict liability offence. And without deciding the point of statutory construction, I accept for the sake of resolving this argument only that an honest and reasonable mistake of fact about any of the excluding factors may, perhaps, constitute a ground of exculpation.

But here, the plaintiff did not give evidence of any such asserted mistake in the witness box at the committal. Nor was there any evidence from which one could sensibly infer such a mistake in the absence of his sworn or affirmed evidence.

In other words, there was no evidence which reasonably raised this putative exculpating state of mind in a strict liability offence. Therefore, there was no need for the Magistrate to reflect upon it at the second phase of determination based upon s 64 of the CPA.

And in any event, the exchange of correspondence goes a very long way to ruling out any such mistake.

Finally, for completeness, the submission about the child assertedly having requested the plaintiff in some sense to be his spokesperson misunderstands the distinction between the definitions of a child and a young person in s 3 of the relevant Act at the time.

In short, the Magistrate was correct to refuse to fail to commit based on any submissions of the plaintiff founded on these carveouts and exceptions.

This ground is rejected.

Ground six was based on the proposition that there was no evidence that the plaintiff was at Newcastle on the dates in question. The underlying proposition was that the particulars in the Court Attendance Notices require such proof.

But that is also founded upon a misconception about legal matters: as can be seen from the offence-creating provision, what is required to be proven is publication or broadcast that “may be accessible by a person in New South Wales”: see s 105(1).

The particulars in the Court Attendance Notices merely stated that the publication was effected in Newcastle, within this State, the prosecution assertion being that the four publications were readily accessible by persons located in New South Wales.

Furthermore, particulars in such a document are just that: details as to how the offence was allegedly committed, not elements of the offence inherently entitling a defendant to acquittal or discharge if they are not established.

On two separate bases then, this ground must be rejected.

As for ground seven, this was based on the proposition that many others committed the same offence allegedly committed by the plaintiff, in that they transmitted or re-transmitted the video in question. It was said that the Magistrate should have reflected on that state of affairs in deciding whether to commit the plaintiff, not only as a matter of equality before the law, but also as a matter of whether, when informed of that other asserted offending, any jury would be prepared to return a verdict of guilty against the plaintiff.

Again, this ground is misconceived on at least two bases.

First, it is hardly the law that, in deciding whether to commit a person to the District Court on a charge of – for example – supplying a prohibited drug, a Magistrate is or was required to reflect on the fact that there may be many other persons, apart from that hypothetical defendant, who have committed an identical offence, but have not been charged with it. To take the submission to its logical (or rather, illogical) conclusion: an alleged murderer could point to the number of unsolved murders in New South Wales in submitting that that defendant should be discharged at committal. That is patently not how the criminal justice system operates in Australia.

Secondly, the confident expectation that the plaintiff will be permitted to inform his jury that others committed the same offence but have not been charged with it, as an argument for his own acquittal, is ill-founded: I respectfully think it very likely that any trial judge would find that that evidence or submission is simply irrelevant to proof or lack of proof of his guilt, and therefore inadmissible, pursuant to s 56 of the Evidence Act 1995 (NSW).

The plaintiff separately relied upon the proposition that many others had committed the same offences as he is alleged to have committed for another purpose. At HT 10.20 ff, he submitted that the asserted commission of the offences by thousands of others gave rise to an honest and reasonable mistake of fact on his part regarding this strict liability of offence (or to express it more correctly, raised the reasonable possibility of such a mistake), such that he should have been discharged at committal.

But the simple response to that is that the exchange of correspondence that I have sketched above, in my respectful opinion has the potential largely if not completely to rule out reliance upon any such “defence”. The Magistrate was well entitled to regard that potential ground of exculpation as not standing in the way of committal for trial.

This ground must fail.

As for ground eight, the submission as I understood it was that the Magistrate refused to take properly into account the various “defences” (I express myself in that way because they are not true defences that impose an onus of proof upon an accused person) relied upon by the plaintiff at the committal, including self-defence (sic, defence of another?), necessity, duress, and honest and reasonable mistake of fact.

It is certainly true that, under the old system of committal, reliance upon exculpatory matters could lead to discharge pursuant to s 64 of the CPA. But here the case was, in my respectful opinion, strong, and the Magistrate considered proposed defences in his determination. It was not surprising, and certainly not suggestive of error, that the Magistrate took the view that those matters did not lead to discharge under s 64 of the CPA, especially in the absence of evidence from the plaintiff.

I do not uphold this ground.

Regarding ground nine, this seemed to be based on the failure of the Magistrate to rely upon honest and reasonable mistake of fact to discharge the plaintiff at committal. But, in light of the email and letter correspondence I have set out above, it was hardly surprising that that “defence” did not stand in the way of the plaintiff being committed for trial, yet again in the absence of any evidence from the plaintiff.

I do not uphold this ground.

As for ground ten, it can be readily rejected, on the simple basis that the assertedly erroneous statement said to have been made by the Magistrate is, in fact, legally correct.

As for ground 11, this was based on an asserted reference during the Local Court hearing made by the Magistrate to the possibility that there may be some negotiations or discussions between the prosecution and the plaintiff. The thesis was that that demonstrated the weakness of the case against the plaintiff.

At the hearing before me, no transcript references were provided by the plaintiff, and he explained at HT 40.04 that “It’s regrettable, your Honour, this section of the transcript where this was raised I couldn’t find and I did look for it”. in other words, the plaintiff was not able to take me to the references upon which he relied for the success of the ground, with the result that I cannot be satisfied that the words complained of were said.

But even accepting for the sake of argument only that such matters were raised in the Local Court, I would regard them as completely anodyne in that less formal setting.

I reject this ground.

Under the rubric of this ground, points were made about digital matters, including proving the provenance of the posts, and an asserted inability of the plaintiff to remove them, and to stop them being reposted by others, even after he had assertedly removed them.

It was also said at the conclusion of oral submissions to me that the plaintiff may be in danger of being imprisoned, and that another person has indeed been imprisoned recently for similar offending. The point was also made that, in light of his visa status in this country, such an outcome could lead to his deportation.

Resolving this last enumerated ground, I respectfully accept the proposition that, having as I understand it elected to have the matter dealt with in the District Court, and in light of the alleged repetitive nature of the offending, and the contemporaneous evidence suggestive of his state of mind at the time; if the plaintiff is convicted of one or more of these offences, his imprisonment is a distinct possibility. But that merely goes to show the gravity of determinedly breaching the prohibition in the offence-creating provision, which was certainly intended to protect the privacy of children in circumstances such as these.

And in any event, in light of the exchange of correspondence that I have sketched above, combined with the alleged chronology of offending, I consider that the statutory test that the Magistrate was asked to consider was soundly fulfilled.

Finally, there were a number of oral submissions made that did not seem to fit readily under any ground. As foreshadowed, I shall deal with them very briefly here, bearing in mind the fundamental flaw in the approach of the plaintiff that I set out at the beginning of this judgment.

Reliance was placed upon s 75 of CPA as it then was, in that the submission was made that a necessary notice was not attached to the written statements relied upon by the prosecution at committal. But the position of the plaintiff seemed to be that he had not objected to this asserted defect, because of his ignorance at the time about the statutory requirement: at HT 19.38 ff. Even if there were some defect in the documents with which he had been provided, this seeming afterthought of the plaintiff cannot found the relief sought.

In similar vein, s 85 as it was in 2018 was relied upon, for the proposition that some of the evidence placed before the Magistrate was false, and the authors of that evidence should have been prosecuted and punished, or the evidence should not have been admitted.

But this highly contestable proposition about the engagement of an offence-creating provision is a matter for the police and the DPP; asserted falsity of evidence is hardly a basis for objection to it; nor is it a basis in itself for a Magistrate to refuse to commit for trial, even under the old system.

The plaintiff also complained about the fact that the evidence of witnesses was given in written form, rather than in person. But he conceded that the transcript from the Local Court showed that an application to have witnesses give evidence in person had been rejected, and was unable to provide a countervailing transcript reference for his proposition that he had sought to revisit the question.

None of these miscellaneous matters justify any of the orders sought by the plaintiff.

None of the submissions of the plaintiff are persuasive, either individually or in combination.

And in any event, the attack upon the committal is fruitless, because it has been overtaken by events.

Finally, the submission that I would dismiss the proceedings in their entirety is misconceived.

For those three separate reasons, the summons must be dismissed.

At the hearing, I foreshadowed reserving costs, a proposition with which both parties agreed.

If costs cannot be agreed between the parties in the next several days, my Associate will provide them with a written timetable for the provision of brief written submissions confined to that final controversy, with an eye to me resolving it in Chambers.

As a very initial thought merely for the assistance of the parties, it could be that the correct costs order would be that the plaintiff, having failed on all grounds, must pay the costs of the DPP of the proceedings before me, on the ordinary basis.

The amended summons of the plaintiff is dismissed.

Costs are reserved.