Director of Public Prosecutions (NSW) v Hughes

By summons filed on 26 October 2016 the Director of Public Prosecutions (NSW) (“the Director”) seeks to appeal against orders made on 26 May 2016 by Magistrate Prowse in the Local Court at Tamworth, dismissing charges brought against the defendant alleging offences contrary to s. 91H(2) of the Crimes Act 1900 (NSW) (“the Act”). The summons seeks orders in the following terms:

The summons was supported by the following affidavits:

Mr Thomas and Ms Donovan both gave oral evidence before me.

The circumstances giving rise to the present proceedings are essentially undisputed and may be summarised as follows.

On 11 October 2015 the defendant was charged with three offences contrary to s. 91H(2) of the Act alleging that between 12:01 on 9 May 2015 and 1:00pm on 10 October 2015, at Tamworth, he:

The prosecution case was that the defendant had been present at the home of a person to whom I shall refer as KH, at her invitation. At the time the defendant was present, KH’s daughter, EH, was in the shower with the bathroom door closed. EH subsequently came out of the bathroom and entered the lounge room wearing only a towel. KH began to dry EH and, for the purposes of doing so, partially removed the towel from EH’s body.

At that point, the defendant picked up his mobile phone and took a photograph of EH. When KH asked the defendant why he had done so, he responded:

Concerned about what had occurred, KH dried and dressed her daughter and asked the defendant to leave.

Subsequently, the defendant held a function at his premises at which KH, EH and a number of the defendant’s friends were present. Those friends included David McCarthy. The defendant showed Mr McCarthy a photograph on his mobile phone. When KH enquired as to what was being shown to Mr McCarthy, the defendant turned his phone around, at which time KH observed that the phone was displaying the photograph of EH which had been taken in the circumstances outlined in [6] to [8] above. KH asked the defendant to delete the photograph and she left a short time thereafter. A copy of the photograph was later found to have been downloaded to the defendant’s computer.

The defendant was then charged with three separate offences contrary to s. 91H(2) of the Act alleging that he produced, possessed and disseminated child abuse material.

The charges against the defendant came before the Tamworth Local Court for hearing on 26 May 2016, at which time the defendant entered pleas of not guilty. At the conclusion of the prosecution case, the defendant did not call any evidence. The Magistrate then heard submissions from both parties and delivered an ex-tempore judgment dismissing all three charges.

At the commencement of his reasons, his Honour set out the charges against the defendant and made reference to s. 91H of the Act. He then summarised the procedural history of the matter in the Local Court before commencing (at T2 L34) to make reference to the evidence. In the course of doing so, his Honour made a number of factual findings, including that:

His Honour noted (commencing at T3 L34) that the defendant’s solicitor had effectively conceded that the Crown had “clearly made out a prima facie case”. He then said (commencing at T3 L36):

Importantly, after making reference to other aspects of the evidence, his Honour said (commencing at T4 L48):

His Honour then dismissed all three charges.

As I have noted at [2] above, the summons was supported by affidavits of Mr Thomas and Ms Donovan, both of whom gave oral evidence before me.

Ms Donovan is a Police Prosecutor based at Tamworth who appeared as the Prosecutor in the proceedings against the defendant before the Magistrate. After the hearing concluded, Ms Donovan discussed the Magistrate’s decision with Det. O’Rourke who was the officer in charge of the investigation. On the same day, she arranged to obtain a copy of what she described in her affidavit as the “Bench Papers”, before commencing to draft a report to her superiors in the “Appeals Unit” canvassing the prospect of an appeal being brought against his Honour’s decision. Four days later, on 30 May 2016, Ms Donovan had a further conversation with Det. O’Rourke, in the course of which Det. O’Rourke squarely raised the question of an appeal. Ms Donovan requested that Det. O’Rourke obtain a copy of the transcript of the Magistrate’s determination, with a view to including it in the report which she was compiling at the time. She also requested a short report from Det. O’Rourke, which he provided on 31 May 2016.

A transcript of the Magistrate’s determination became available on 16 June 2016. However it was not until 2 August 2016 that the report was completed by Ms Donovan. It appears from paragraph 19 of her affidavit that it was not until 15 August 2016 that the full file was electronically scanned and sent to the Appeals Unit for consideration of the lodgement of an appeal.

In her affidavit, Ms Donovan set out the reasons for the delay in submitting her report. In doing so, she made reference to the nature and extent of her commitments as the senior Prosecutor in the New England area. She explained that she was absent from work over several days in June due to the necessity to attend a funeral. She was also absent on personal leave from 13 July 2016 to 1 August 2016. The effect of her evidence was that a combination of these matters, along with an already heavy workload, prevented her from completing her report until early August. She also pointed out that the present matter was one of a number of matters which had been before the Tamworth Local Court in respect of which consideration was being given to the bringing of an appeal.

The general circumstances in which Ms Donovan found herself between the hearing and the finalisation of her report were encapsulated in paragraph 31 of her affidavit:

In cross-examination, Ms Donovan confirmed (at T13 L34-38) that following the conclusion of the hearing she formed an opinion that an appeal should be lodged, but that it was necessary for her to consult with Det. O’Rourke, as well as others, to determine whether or not her opinion would be supported. She said (at T13 L40 to T14 L2) that she was aware that there was a period of 28 days in which to lodge an appeal. She also said (at T14 L33-36) that she understood that there “could be” an application for an extension of time made, but that “it was a matter of whether or not it was worthy of our Appeals Unit thinking it was worthy enough to request an extension of time”.

Ms Donovan agreed (at T16 L7-16) that she had discussed with Det. O’Rourke the possibility of lodging an appeal in the absence of a transcript of the Magistrate’s determination. When asked (commencing at T16 L39) whether she had made contact with anyone in the Appeals Unit at any time prior to August, Ms Donovan said (at T17 L2-11) that although she had not been able to find any written record of having done so, it was quite possible that she did because she had been talking to persons within that unit around that time about other matters which had come before the Tamworth Local Court in respect of which appeals were contemplated. She agreed (at T17 L22-24) that she had not informed anyone about the relevant deadline for bringing an appeal in the present case.

Ms Donovan was questioned extensively about the time she took to compile her report to the Appeals Unit. Commencing at T19 L9, she said that having started to draft it after the conclusion of the hearing, she worked on it progressively as her ongoing commitments allowed, such that it was not completed “in one block”. She thought that the report may have taken a total of “perhaps 4-5 hours” to complete, but could not recall how many times it was “revisited” between the time she commenced it and the time that it was submitted. Ms Donovan said (at T20 L3-7) that she was on leave between 13 July 2016 and 1 August 2016 and that she finished the report late on the evening of 2 August following her return. She also said (at T21 L5-15) that other than herself and Det. O’Rourke, no other person within her office had any knowledge of the facts of the alleged offending, the circumstances of the hearing, or the issue(s) bearing upon any proposed appeal. Accordingly, there was no other person with sufficient knowledge of the matter who was available to assist her with the preparation of her report.

Ms Donovan also explained (at T25 L1-7; T27 L20-28) the nature and extent of the duties and responsibilities of her position. She said that during the period of time over which the report was being compiled she was a participant in an “Inspectors Transition Program” for which she was required to prepare material and attend classes. She also explained that her duties as a Prosecutor were not restricted to daily appearances before the Local Court at Tamworth, but extended to the supervision of two other Prosecutors, and to the tasks of attending Local Courts in nearby regional areas on an ongoing basis. She said that her general practice was to arrive at her office at 8:00am (or before), and not leave until sometime between 6:00pm and 6:30pm each day. She also explained that the time she spent in her office before and after appearing in court each day was devoted to (inter alia) supervising other Prosecutors, giving advice to local police about ongoing investigations, responding to the preparation of briefs of evidence, giving advice to Local Area Commanders, attending to representations made on behalf of defendants in matters before the Local Court, and preparing and reviewing matters listed in Court each day. In other words, the preparation of the report in this matter was not Ms Donovan’s only responsibility.

Precisely what took place after Ms Donovan had submitted her report is not clear on the evidence. However it is clear that on 13 September 2016, Sergeant Ray of the NSW Police referred the matter to the Director’s office for consideration of the bringing of an appeal pursuant to s. 56 of the Crimes (Appeal and Review) Act 2001 (NSW) (“the CAR Act”). Upon receipt of the referral at the Director’s office, the matter was assigned to Mr Thomas.

Mr Thomas explained in his affidavit of 15 November 2016 that on 15 September 2016 (i.e. two days after the referral of the matter by Sgt. Ray) he made an urgent request for a copy of the transcript of the hearing before the Magistrate. That transcript was received on 10 October 2016. On 26 October 2016, Mr Thomas arranged for the summons to be filed on behalf of the Director, having received the Director’s approval to bring the appeal.

It should be noted that Mr Thomas requested a transcript of the entirety of the hearing before the Magistrate, i.e. the evidence, submissions and determination (at T11 L27-33). In his second affidavit of 25 April 2017, Mr Thomas explained that he was not aware that Ms Donovan had received a copy of the transcript of the Magistrate’s reasons on 16 June 2016 because it was not included in the material provided to the Director. He remained so unaware until he had the opportunity to read Ms Donovan’s affidavit of 24 April 2017 after it was filed.

In cross-examination, Mr Thomas was asked (commencing at T5 L22) whether, when the carriage of this matter was assigned to him, he considered it appropriate (given the time which had passed) to enquire with the police as to whether or not they had already obtained a transcript of any part of the proceedings before the Magistrate. Mr Thomas said that he did not consider it appropriate, firstly because there was no reference in the material provided by the police to the fact that any transcript had been obtained, and secondly because in matters of this nature, the Director’s office did not generally receive a transcript from the police. In these circumstances Mr Thomas did not regard the absence of a transcript as in any way unusual.

Mr Thomas agreed (at T9 L32-35) that when he received the transcript on 10 October 2016 the period in which an appeal was permitted to be lodged had long since passed. He explained (commencing at T9 L48) that between his receipt of the transcript and the filing of the summons he read the transcript, considered the accompanying material provided by the police, prepared an advice to the Director, prepared a draft summons and then forwarded that material to the Director’s chambers for consideration. He could not recall the precise date on which the material had been provided to the Director. However, he did not accept the suggestion (at T10 L9-12) that it would have been within a day or two of receipt of the transcript. His best recollection (at T10 L19) was that it would have been “towards the middle” of the 16 day period between his receipt of the transcript and the filing of the summons.

Counsel for the Director submitted that the application for an extension of time was to be determined according to four primary considerations, namely:

Counsel submitted that properly assessed, the length of the delay in the present case was four months. The effect of counsel’s submissions was that in all of the circumstances, this was not a lengthy delay and was, in any event, one which had been satisfactorily explained.

Counsel submitted, in particular, that the evidence of Ms Donovan satisfactorily explained the delay which had been taken to prepare her initial report. It was submitted that such delay was attributable to (inter alia) the fact that Ms Donovan had significant commitments.

Counsel expressly accepted that there was no evidence as to what had occurred in the period between the submission of Ms Donovan’s report to the Appeals Unit and the referral of the matter to the Director. Counsel submitted that whilst she was not in a position to establish, with any degree of specificity, what had occurred during that period, I should not infer that “there was nothing going on” in terms of progressing the appeal. Counsel invited me, given the fact that the matter was subsequently referred to the Director, to infer that during the period in which the matter was with the Appeals Unit consideration was obviously being given to the question of whether or not an appeal ought be lodged.

It was further submitted that once the matter reached he Director’s office, it progressed satisfactorily, and that any delay was more than satisfactorily explained. In this regard, counsel pointed to the evidence of Mr Thomas that he was unaware, at the time of being given carriage of the matter, that a transcript of any part of the proceedings had already been obtained. Counsel also pointed to Mr Thomas’ evidence that his experience in matters of this nature was such that he did not consider it necessary to enquire of the police as to whether that step had been taken. It was submitted that once the matter had been referred to the Director, no time had been wasted in requesting a transcript.

Counsel for the Director submitted that in the period between receipt of the transcript and the filing of the summons, there had been an obvious necessity for Mr Thomas to read the transcript and associated material, consider what recommendation should be made to the Director, prepare a report, prepare a draft summons, and allow the Director to make a determination.

In summary counsel submitted that the evidence established that the reasons for the delay in the matter in reaching the Director were:

For the reasons more fully set out below in my consideration of grounds 1 and 2, counsel for the Director submitted that the appeal was more than arguable, and that ground 1 in particular raised an issue of considerable importance concerning the proper construction of s. 91H of the Act.

Finally counsel for the Director accepted that there was some prejudice to the defendant arising from the fact that the matter had remained unresolved for a period of time. Whilst counsel accepted that, in a general sense, this may weigh against granting an extension of time, it was pointed out that the defendant had not led evidence of any specific prejudice. This, it was submitted, was relevant in determining the degree of prejudice brought about by the delay.

Counsel for the defendant relied upon a number of factors which, he submitted, weighed against an order extending time.

In written submissions, counsel argued that the Director had brought these proceedings in circumstances which were “oppressive” and “not in the interests of justice”. He submitted that even if the asserted errors on the part of the Magistrate were made out, it remained the case that the factual findings of the Magistrate were not the subject of any challenge and that those factual findings, even taken at their highest, were incapable of sustaining a finding, beyond reasonable doubt, that the defendant had committed any of the offences alleged against him.

Counsel further submitted that it was “not ultimately clear” that ground 1 raised a question of law alone and that in any event, the CAR Act reflected a specific intention on the part of the Parliament to limit appeals arising out of summary proceedings before the Local Court. Counsel submitted that the narrow scope of the legislation governing such appeals was “consonant with limiting common law principles in relation to double jeopardy”, and that it was appropriate to view the court’s discretion to extend time in the context of such principles. It was submitted, in particular, that inappropriate and unfair conduct on the part of prosecuting authorities was a relevant consideration in the exercise of the discretion to extend time. With these matters in mind, counsel submitted that:

Counsel for the defendant further submitted that the delay gave rise to a “broader public concern” as to the bringing of proceedings of this nature. Counsel submitted that the Director was bound to:

It should be noted that generally speaking, counsel also accepted that there was a public interest in ensuring that cases which come before any Court are dealt with according to law.

Counsel further submitted that a “substantial sense of disquiet” would arise in the community if leave were granted in a case such as the present. He submitted that there was “ample reason” to conclude that the proposed appeal was a “wholly inappropriate vehicle through which to seek to engage the discretion of the court” having regard to (inter alia):

Counsel submitted that even if error were established, remitting the matter to the Magistrate would be an exercise in futility because the same outcome, namely the dismissal of the proceedings, would inevitably follow. It was submitted that in these circumstances, the proceedings brought by the Director had the appearance “of an oppressive and unnecessary attempt to engage the court’s jurisdiction”.

Counsel expanded upon these various matters in oral submissions. He submitted, in particular, that the evidence established that the relevant file had remained in the possession of Ms Donovan for somewhere between 3 and 4 months, in circumstances where Ms Donovan was aware of the applicable deadline for the bringing of the appeal yet had made no application to the Local Court to extend it. Counsel also submitted that Ms Donovan had the support of two subordinates who were working in the office with her and that I should conclude that, knowing of the applicable time limit, she had simply assumed that if an appeal was brought, this Court would inevitably grant an extension of time.

In light of the absence of any evidence as to what had occurred between the time Ms Donovan filed her report and the receipt of the matter by the Director, counsel submitted that I should draw a Jones v Dunkel-type inference against the Director as to that period. He further submitted that because the application for an extension of time was made by the Crown, and because of the necessity for the Crown to be a model litigant, it was necessary that I be “heavily persuaded” that an extension was appropriate, because there was an expectation that deadlines be met.

Counsel further submitted that the length of the delay in the present case was substantially greater than that considered in any other case of this nature. Whilst counsel acknowledged that there was no evidence of specific prejudice being visited upon the defendant as a consequence of the delay, he submitted that it was nevertheless appropriate to take into account that the defendant was an elderly man with no criminal record, who was necessarily anxious about the ultimate outcome of the matter.

The Director seeks to bring the present proceedings pursuant to s. 56(1)(c) of the CAR Act. Section 56 provides as follows:

Part 51B r. 6 of the Supreme Court Rules 1970 (NSW) (“the Rules”) is in the following terms:

The effect of these statutory provisions is that (inter alia) an appeal pursuant to s. 56(1)(c) of the CAR Act must be brought within 28 days after the date on which the relevant order is made. However part 51B r. 6(2)(a) of the Rules confers a discretion upon the court to extend the time fixed by subrule (1).

It is not possible to lay down fixed and binding rules governing the exercise of a discretion to extend time: Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27 at 539; [66] per Kirby J. The ultimate question is whether it would be just, in all of the circumstances, to do so. It is for the Director to persuade me that the discretion should be exercised in favour of extending time. As Kirby J pointed out in Jackamarra, whether that onus has been discharged will usually depend, at least in part, upon the delay being satisfactorily explained. However I am unable to accept the proposition advanced on behalf of the defendant that because the application is brought by the Director, I must be satisfied that there are “compelling reasons” to exercise the discretion in favour of extending time. There is nothing within the terms of the relevant statutory provisions which suggests that should be the case, and the proposition is unsupported by authority. Further, the fact that the Crown must be a model litigant does not lead to the conclusion, as the submissions of counsel for the defendant tended to suggest, that in an appropriate case the Crown cannot seek an extension of time. Whether such extension is granted is, of course, another question entirely, and one which must be resolved according to a number of principles to which I now turn.

In Pace v Read (2000) 179 ALR 437; [2000] NSWSC 823 O’Keefe J, having made reference to the judgment of Kirby J in Jackamarra, identified (at 445; [49]) four principal factors to be considered in an application to extend time, namely:

In considering these factors, it is relevant to firstly note that:

Within that four month period there are, in effect, three separate periods of delay which require consideration, namely those between:

The matter was determined by the Magistrate on 26 May 2016. Ms Donovan filed her report with the Appeals Unit in early to mid-August 2016. It follows that the matter remained with Ms Donovan for a period of approximately 2½ months, not 3 to 4 months as was submitted by counsel for the defendant.

Ms Donovan explained what occurred in that period. Clearly, she was aware that the bringing of any appeal was subject to a time limit. However, I do not accept the submission advanced by counsel for the defendant that Ms Donovan simply assumed that if her recommendation to bring an appeal were adopted, an extension of time would inevitably be granted by this Court. No such proposition was ever put to Ms Donovan in cross-examination.

It is also important to assess this period of delay in the context of the evidence given by Ms Donovan as to her various duties and responsibilities. Ms Donovan impressed me as a diligent and conscientious Prosecutor who consistently works long hours under a heavy workload. It is important to bear in mind that during the relevant period she had a myriad of duties and responsibilities which extended far beyond those referable to appearing in Court. She had little assistance available to her in relation to dealing with this matter, which was one of a number in which appeals were being considered. She specifically said, and I accept, that other than Det. O’Rourke, there was no other officer who was seized of sufficient knowledge of this matter to be of any practical assistance to her in progressing any proposed appeal. The submission made on behalf of the defendant that Ms Donovan had acknowledged that she had such support is completely contrary to her unchallenged evidence.

The delay occasioned whilst the matter was with Ms Donovan was regrettable to say the least. However, it was certainly not due to any dilatory behaviour on her part. It was due to a variety of circumstances including Ms Donovan’s already heavy workload and her periods of leave (one of which was effectively enforced). In my view, this period of delay has been adequately explained.

The next relevant period is that within which the matter remained in the Appeals Unit which, on the evidence, was somewhere between 4 and 6 weeks. There is a complete absence of direct evidence as to what occurred in that time. Given the fact that the matter was ultimately referred to the Director, I am prepared to conclude that the question of an appeal was considered at some point within that period. However, the matter can be put no higher than that. In circumstances where evidence explaining the reason for the delay would obviously have been available to the Director, I am left to infer that its detail would not have assisted the Director’s case.

The third period of delay is encompassed by the approximately 6 week period between receipt of the matter by the Director’s office and the filing of the summons. That period was the subject of the evidence given by Mr Thomas. Much was made of the fact that such delay was partly attributable to the fact that Mr Thomas had requested a full transcript of the proceedings, in circumstances where a transcript of the Magistrate’s reasons had already been provided to the police. Two observations may be made about that aspect of the evidence.

Firstly, I accept Mr Thomas’ evidence that he saw that as a necessary step, in circumstances where the transcript had not been provided to the Director’s office by the police, and also in circumstances where, in his experience, such transcripts were not generally provided. In other words, the absence of the transcript in the material with which the Director was provided was not in any way unusual and appears to have been consistent with the practice that the transcript would be requested once the matter had reached the Director’s office. Secondly, a full transcript of the proceedings was obviously necessary so that Mr Thomas could give proper consideration to whether he should recommend to the Director that an appeal be brought. To have made any recommendation in the absence of the entirety of the relevant material would have been less than diligent. In all of the circumstances, I am satisfied that the period of time within which the matter remained in the Director’s office before proceedings were commenced was certainly not excessive, and has been adequately explained by Mr Thomas.

Counsel for the defendant relied on the fact that the length of the delay in the present case was greater than that in other cases of a similar kind in which an extension of time had been sought. A comparative exercise of that kind is of no utility for the simple reason that each case must be determined on its own facts. What may, in one set of circumstances, be a satisfactorily explained period of delay, might be completely unsatisfactory in another. In my view, the delay in the present case was not excessive. Moreover, but for the relatively short period in which the matter remained in the Appeals Unit, the delay has been satisfactorily explained.

Further, and for the reasons more fully set out in my consideration of the individual grounds of appeal, I have come to the view that the case advanced by the Director is not merely arguable, but is such to entitle the Director to the relief sought. That is obviously a matter which weighs heavily in favour of an extension of time being granted.

I accept that there is what may be described as presumptive prejudice to the defendant arising from the fact that the matter has remained unresolved for a period of time and will, in light of the conclusions I have reached on grounds 1 and 2, be remitted to the Local Court. However the matter can be put no higher than that.

I do not accept the proposition advanced on behalf of the defendant that a “substantial sense of disquiet” would arise in the community if an extension of time were granted. As counsel for the defendant generally accepted, there is a public interest in ensuring that cases alleging serious criminal conduct are dealt with according to law. Further, the proposition advanced by counsel for the defendant that this Court should “set in place a disciplined and rigorous set of guidelines” to be applied in cases where an extension of time is sought is at odds with the judgment of Kirby J in Jackamarra. Facts of cases necessarily differ. It was for that reason that Kirby J pointed out that it is not possible to lay down fixed and binding rules governing the exercise of a discretion to extend time.

Finally, counsel’s reliance on the decision in R v JW [2010] NSWCCA 49 in support of the proposition that the application of double jeopardy principles should lead to a refusal of an extension of time, was misconceived. That case involved an appeal against sentence, and a consideration of the provisions of s. 68A of the CAR Act which removed double jeopardy as a principle of re-sentencing. It has little relevance to a case such as the present, which constitutes a statutory exception to the rule against double jeopardy: Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308; (2007) 48 MVR 78 at [25].

For all of these reasons, I am satisfied that the extension of time should be granted. I turn to consider the two grounds relied upon by the Director, noting that those parts of the Magistrate’s reasons relevant to those grounds have been set out at [13]-[14] above.

Counsel for the Director accepted that s. 91H(2) of the Act did not, expressly or by implication, exclude mens rea as an element of the offences which it created. Counsel further submitted that although the section made no reference to the applicable mental element, it was to be assumed that the Parliament intended that a mental element apply to each of the acts of production, possession or dissemination of child abuse material.

Counsel submitted that for the purposes of the offence of possessing child abuse material created by s. 91H(2), it was necessary for the prosecution to prove knowledge on the part of the defendant that such material was in his or her custody: Clark v R [2008] NSWCCA 122; (2008) 185 A Crim R 1 at [226]-[227] (per Barr J, Bell JA (as her Honour then was) and Buddin J agreeing). Whilst counsel accepted that the mental element applicable to the remaining offences created by s. 91H(2), namely offences of producing and disseminating child abuse material, was not the subject of any authoritative decision, she submitted that on a proper construction of the section, proof of a specific intent was not required.

Counsel for the Director submitted that it was evident from his Honour’s reasons that he had concluded that the requisite criminal intent for an offence contrary to s. 91H(2) was “malice aforethought” and that because the prosecution had not been able to prove a malicious intent on the part of the defendant the charges were to be dismissed. It was submitted that in concluding that proof of malice was required, his Honour had erred.

Counsel for the defendant submitted that it was “not entirely clear” that the complaint made by the Director in ground 1 raised a question of law alone. This, it was submitted, was because in determining the appeal, it was necessary to pay close attention to the facts surrounding the alleged offending. It was submitted that in these circumstances, the question raised by ground 1 was one of mixed fact and law and that in these circumstances there was no right of appeal under s. 56(1) of the CAR Act. Counsel for the defendant argued that it was impossible, in light of the way in which the Director had approached the matter, and particularly in light of the error asserted by the Director in ground 1, to do other than pay close attention to the facts found by his Honour surrounding the defendant’s taking of the photograph. It was submitted that in these circumstances, any determination of whether the error asserted by the Director was made out necessarily involved considering the Magistrate’s findings of fact, such that questions of law and fact were inextricably linked.

It should be emphasised however that in oral submissions, counsel for the defendant expressly conceded (at T68 L44-48) that none of the offences created by s. 91H(2) require proof of malice. It was the position of counsel for the defendant that, in addition to the application of principles of double jeopardy (which, it was said, should lead to a dismissal of the proceedings):

As to the first of those propositions, counsel took me at considerable length to the Magistrate’s reasons which, he submitted, did not disclose a conclusion that malice was an element of the offences. Counsel described the Magistrate’s references to that issue as reflecting “a frolic into the past”, in the sense that the Magistrate had made reference to legislation which was no longer in existence. Counsel submitted that properly read, the Magistrate’s ultimate finding did not rise above a conclusion that the prosecution had not been able to prove, beyond reasonable doubt, any underlying criminal intent on the part of the defendant. It was submitted that on a proper construction of what his Honour had said, he had concluded that the Crown was not in a position to prove beyond reasonable doubt that the defendant had deliberately taken a photograph of a naked child, in circumstances where the taking of the photograph must be a deliberate act.

Counsel for the defendant further submitted in this respect that it would be “unusual” for a Magistrate to set out “the precise nuance aspects of mens rea when determining, ex tempore, a charge of this nature”. It was submitted that it was clear that the Magistrate was aware of the relevant statutory provisions, that he had “confronted the issues”, and that he had not erred in reaching the conclusion that he did.

As to the second proposition, counsel submitted that having regard to the factual findings made by the Magistrate, remitting the matter in the event that error were found, would be futile, for the simple reason that the same result would inevitably follow. In support of this proposition, counsel took me at length to the Magistrate’s factual findings.

Section 91H of the Act is in the following terms:

Section 91HA(1) of the Act is in the following terms:

There can be no doubt in my view that the issue raised by the Director in ground 1 raises a question of law alone, namely the correct interpretation of s. 91H of the Act. Contrary to the submission advanced on behalf of the defendant, the resolution of that question does not require any consideration of the facts of the offending at all, so as to change the character of the question to one of mixed law and fact.

As I have noted, counsel for the defendant expressly conceded that a conclusion that malice was an element of an offence contrary to s. 91H(2) would reflect error. That concession was an appropriate one for a number of reasons.

In He Kaw Teh v The Queen (1985) 157 CLR 523, Brennan J (as his Honour then was) observed (at 565) that there is a presumption that mens rea is an element in a statutory offence, even though the offence may be defined only by reference to its external elements. However as his Honour recognised (at 568), it is one thing to say that mens rea is an element of an offence. It is quite another to identify it. The Parliament must be taken to have intended, for the purposes of the offences created by s. 91H(2), that a mental element applies to each of the physical acts enumerated. I accept the submission of counsel for the Director that the provision for a defence in s. 91HA(1) confirms that to be the case. The real question concerns the nature of the mental element which is required to be proved.

In Clark the Court of Criminal Appeal considered the mental element applicable to a charge of possessing child pornography under s. 91H (in its previous form). Barr J, with whom the other members of the Court agreed said, at [226] – [227]:

The mental element applicable to the offences created by s. 91H(2) of producing and disseminating child abuse material has not been the subject of authoritative determination. However in the absence of some specificity in the terms of s. 91H(2), there is simply no warrant to conclude that proof of any specific intent, including malice, is required. As Brennan J observed in He Kaw Teh (at 570):

Accepting there is nothing in the language of s. 912H(2) which suggests that the offences created are offences of specific intent, and consistent with the decision in He Kaw Teh, I take the view that for the purposes of an offence contrary to s. 91H(2) the prosecution must prove beyond reasonable doubt that a defendant voluntarily and intentionally performed the particular physical act in question.

As I have already noted, the position taken by counsel for the defendant was that the Magistrate did not, in fact, conclude that the prosecution was required to prove malice. That such a position is untenable can be illustrated by reference to two passages of the Magistrate’s reasons.

In the first of the passages set out at [14] above, his Honour concluded that it was necessary for the prosecution to prove “criminal intent that (the defendant) had malice aforethought”. On a fair reading of that passage, the only available conclusion is that his Honour used the terms “criminal intent” and “malice aforethought” interchangeably, and concluded that for the purposes of an offence contrary to s. 91H(2), the former was constituted by the latter. His Honour’s reasons bespeak no other interpretation.

Such a conclusion is fortified by his Honour’s determination (in the second paragraph of that part of his reasons set out at [14] above) that the prosecution was not able “to prove beyond reasonable doubt that there was any malicious intent”. The reference to malicious intent in that context can only be construed as a reference to what his Honour erroneously concluded was the mental element of offending contrary to s. 91H(2). Clearly, his Honour took the view that malice was an element of the offence which the prosecution was required to prove beyond reasonable doubt.

In my view, these passages unequivocally reflect a finding by the Magistrate that it was incumbent upon the prosecution to prove malice as an element of an offence contrary to s. 91H(2). For the reasons set out, that was an error. It follows that ground 1 is made out.

Counsel for the Director expressly acknowledged that the Magistrate’s reasons were delivered ex-tempore, and that in these circumstances they should not be “picked over” in an effort to find error. Counsel accepted that proper allowance must be given to the pressure of his Honour’s busy workload in the Local Court: Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited (2006) 67 NSWLR 402; [2006] NSWSC 343 at [15] per Johnson J. It was submitted that in these circumstances the appropriate approach was to consider the substance of his Honour’s reasons in order to determine whether there was error: Acuthan v Coates (1986) 6 NSWLR 472 at 478-479 per Kirby P (as his Honour then was).

Counsel for the Director also accepted that whilst the giving of reasons is a necessarily essential part of a judicial officer’s function, the nature and content of the reasons required will necessarily depend upon the facts and circumstances of the particular case, and the issues under consideration: Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713 at [56] citing Moloney v Collins [2011] NSWSC 628 at [64].

However whilst acknowledging such matters, counsel for the Director submitted that it was a necessary part of the function of a judge or Magistrate to give reasons which adequately explained the findings made, and which exposed the process of reasoning which led to those findings: Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-281; Illawarra Cashmart (supra) at 408; Wililo (supra) at [55]-[64]; Director of Public Prosecutions (NSW) v Elias [2013] NSWSC 28 at [44]-[46]. It was submitted that the paucity of reasons delivered by his Honour in the present case resulted in this Court not being in a position to determine the legal (or for that matter, the factual) basis of the determination to dismiss the charges.

In particular, it was submitted that the Magistrate did not identify what (if any) of the evidence adduced by the prosecution was relevant to the question of intention and that as a consequence, the reasons given by his Honour did not adequately explain the findings he made, and the reasoning process which led him to make them.

Counsel for the defendant characterised ground 2 as “superfluous”. He submitted that the gravamen of the plaintiff’s complaint was that his Honour had misapplied the law to the facts, and that this was not properly categorised as a failure to give reasons. In particular, and as I have already noted in determining ground 1, counsel for the defendant submitted that it was not part of his Honour’s function, and indeed that it would be unusual, for any judicial officer to “set out the precise nuance aspects of mens rea when determining ex tempore a charge of this nature”.

Counsel for the defendant expressly acknowledged that the Magistrate’s references to legislative history might be viewed as “less than instructive” and “perhaps led to a sense of confusion”. Despite those matters, it was counsel’s submission that his Honour’s reasons, far from being inadequate, were “perhaps too extensive”.

Having found in favour of the plaintiff in respect of ground 1, the resolution of ground 2 is, strictly speaking, unnecessary. However, in light of the fact that the matter will necessarily be remitted to his Honour, and given that this ground was the subject of submissions, it is appropriate that it be resolved, and that I express my views in relation to it.

As counsel for the Director accepted, due allowance must be made for the busy workload of a court such as the Local Court, and the often pressured circumstances in which ex-tempore judgments are delivered: Maviglia v Maviglia [1999] NSWCA 188 at [1] per Mason P; Rose v R [2013] NSWCCA 71 at [41] per Bellew J and the authorities cited therein. It is apparent that the Magistrate’s decision in the present case was given immediately following hearing the evidence and submissions, and in what I infer was in a busy list. However even when full weight is given to those factors, I am driven to the conclusion that the reasons given by the Magistrate were inadequate.

In Dee Why Auto Clinic v Roads and Maritime Services [2017] NSWSC 377 I had occasion to consider the authorities which govern the obligation of a judicial officer to provide adequate reasons for his or her decision. I summarised the relevant principles (commencing at [44]) as follows:

His Honour did not engage in any substantive analysis of the evidence and his reasons did not expose the process which led him to reach the conclusions that he did. More specifically, his Honour’s determination to dismiss the charges was based, at least in part, upon what he viewed as the correct construction of s. 91H of the Act. Leaving aside the fact that I have found that such a construction was an error, his Honour undertook no analysis of s. 91H so as to explain why he concluded that the prosecution was required to prove malice.

I am unable to accept the submission advanced by counsel for the defendant that it was not part of his Honour’s function, and indeed that it would have been unusual for a judicial officer in his Honour’s position, to set out the “precise nuance aspects” in dealing with an issue of mens rea in a case such as this. I accept that the level of detail with which a Magistrate or Judge is required to deal with an issue will necessarily depend on the facts and circumstances of the particular case. In the present case however, mens rea was clearly a principal issue and the process which led the Magistrate to form the conclusion that he did is simply not evident from his reasons.

For all of those reasons ground 2 is made out.

The further submission of counsel for the defendant was that even if error were found, the matter should not be remitted to the Local Court because it was inevitable that the same result would follow. I am unable to accept that submission. Where error is established in an appeal of this nature, the making of an order for the matter to be remitted is an approach which is consistent with the proper relationship between this Court and the Local Court in statutory appeals with respect to criminal matters. Whether the evidence is sufficient to establish, beyond reasonable doubt, the commission of any offence will be a matter for the Magistrate to determine, on the application of the proper principles, at the resumed hearing. That is not a question for me to determine in the context of a limited statutory appeal: Director of Public Prosecutions v Sadler [2013] NSWSC 718 at [103]-[105]; Council for the City of Lake Macquarie v Morris (2005) 63 NSWLR 263; [2005] NSWSC 387 at [61]; Director of Public Prosecutions (NSW) v Tilley [2016] NSWSC 984 at [52]-[55]; Wililo at [145].

For the foregoing reasons I make the following orders: