Director of Public Prosecutions (NSW) v Robert Keith Tilley

On 20 October 2014 Robert Keith Tilley (“the defendant”) was charged with an offence contrary to s. 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW) (“the Act”) in the following terms:

The defendant entered a plea of not guilty to the charge and the matter proceeded to hearing in the Tamworth Local Court over a period of 3 days, namely 28 May 2015, 29 May 2015 and 14 August 2015. Having heard evidence and submissions, the learned Magistrate dismissed the charge against the defendant.

By summons filed on 4 December 2015, the Director of Public Prosecutions (NSW) brought an appeal, pursuant to the Crimes (Appeal and Review) Act 2001 (NSW) (“the Review Act”), against the Magistrate’s determination. The Director seeks orders:

The summons was supported by an affidavit of Graham Hazlitt, solicitor, sworn on 7 April 2016. That affidavit was contained in a Court Book containing all of the relevant evidentiary material which was tendered with the consent of both parties and marked exhibit A.

The Director relies upon two grounds of appeal, namely that the Magistrate erred in law in:

The focus of the respective submissions was upon the first of those grounds.

Section 3A(1) of the Act is in the following terms:

There was no dispute in the present case that the defendant had been a registrable person since November 2008 as a consequence of being convicted, in 1997, of having sexual intercourse with a child under his authority. As a consequence of the commission of that offence, a 15 year old girl (RG) fell pregnant to him and gave birth to their daughter (KG) on 28 June 1998.

Section 9 of the Act prescribes relevant personal information which must be reported by a registrable person. For the purposes of the present case it is relevant to note that s. 9(1)(e) is in the following terms:

Section 11 of the Act imposes an obligation upon on a registrable person to report any changes to relevant personal information, and is in the following terms:

Section 17 of the Act creates the offence with which the defendant was charged and is in the following terms:

Section 21A of the Act facilitates evidence by way of the tender of a certificate and is in the following terms:

KG, KT and BT are the defendant’s children. The prosecution case before the Magistrate was that the defendant had permitted three children who were each under the age of 18 years, namely KG, BT and KG’s friend (SS), to reside with him for a period or periods of more than three days, and that he failed to report that fact to police, contrary to the obligation to do so which was imposed upon him under the Act. Before the Magistrate, the case against the defendant proceeded by way of the tender of a large volume of documentary material, supplemented by oral evidence from a number of police officers, and from DM, who was the father of SS. For present purposes, the relevant evidence may be summarised as follows.

A certificate issued under s. 21A of the Act which was tendered before the Magistrate established that the defendant was a registrable person under the Act, and had been since November 2008 (CB227). On 20 August 2010 the defendant acknowledged, in writing, that he had been given a Form 3 Notice issued under the Act (CB110 and following) which informed him of various reporting obligations. That Notice included the following provisions:

On 1 September 2014 KG, who was a friend of SS, commenced living with SS and her family at their home. KG and SS were best friends and attended the same school: statement of DM at [4]; CB375.

On 6 September 2014, KG told DM that she wanted “to go into town and meet her Dad as this was the first time”: statement of DM at [5]; CB375. On that day, KG, SS and DM travelled to Tamworth where they met the defendant. They all remained in each other’s company for approximately an hour before going shopping, following which DM allowed KG to “spend a bit of time with her Dad so she could get to know him”: statement of DM at [6]; CB375; CB91 L32-40).

Prior to this meeting taking place, the defendant had telephoned Detective Senior Constable Wallace. In a statement of 23 November 2014 (CB163 and following) Detective Wallace stated (at [6]):

Detective Wallace was one of the witnesses called to give evidence before the Magistrate. In the course of cross-examination he was asked the following (commencing at CB50 L21):

After asking questions of Detective Wallace in relation to other subject matter (including the defendant’s reading skills) the cross-examination returned to the conversation between the defendant and Detective Wallace on 8 September 2014 (commencing at CB54 L37):

In about 2012, the defendant had commenced employment as a farm hand. As part of his remuneration package, he was provided with rental accommodation at the property at which he worked, which was owned by Peter and Denise Klasen (“the property”). The defendant was living at the property in September 2014: statement of Peter Klasen at [3], [6]; CB129. In that statement Mr Klasen also said the following (commencing at [9])::

The statement of DM tendered before the Magistrate (CB375 – 377), along with his evidence at CB92 L25 and following, supported the fact that KG, BT, SS and KT stayed with the defendant at his residence for some days on and from about 17 September 2014. DM stated (commencing at [8]):

KT made a statement to the police which was also tendered before the Magistrate (CB126 – 128) in which she said the following (commencing at [6]):

On the afternoon of 18 September 2014, Senior Constable O’Brien attended the property with Constable Wade. Senior Constable O’Brien’s statement was before the Magistrate (CB120-121) and recorded (at [4]) that she had attended the property “in relation to a concern for (the) welfare of (KG) who was staying with her father Robert Tilley”. The statement continued (commencing at [6]):

A statement of Constable Wade was also tendered before the Magistrate (CB161 – 162). Commencing at [5] Constable Wade stated:

Constable Wade gave evidence before the Magistrate and was cross-examined about his attendance at the property (commencing at CB18 L34). Having confirmed those persons who were present at the time, the cross-examination continued (commencing at CB19 L4):

The cross-examination then turned to the conversation between Constable Wade and Detective Wallace (commencing at CB20 L30):

Constable Wade was then asked (commencing at CB23 L32):

Also before the Magistrate were transcripts of interviews conducted with KG (commencing at CB134) and SS (commencing at CB149). Both recounted occasions on which they had attended, and stayed at, the defendant’s premises.

At the conclusion of the evidence for the prosecution the solicitor for the defendant submitted to the Magistrate that there was no evidence to establish the fact that the defendant had failed to comply with the reporting requirements imposed upon him. In particular, the defendant’s solicitor submitted (commencing at CB73):

In reply, the prosecutor (at CB74) drew the Magistrate’s attention to condition 6(d) (set out at [14] above) as well as to the provisions of s. 9(1)(e) of the Act:

The Magistrate found that there was a prima facie case. The defendant was not called to give evidence and the solicitor for the defendant and the prosecutor addressed the Magistrate further (although those submissions have not been transcribed). The Magistrate then dismissed the charge.

The reasons given by the Magistrate (at CB105-106) were brief. In view of the fact that those reasons are the focus of the principal ground of appeal it is appropriate that I set them out in full:

Mr Kell, the Acting Crown Advocate who appeared with Ms Baker of counsel for the Director, noted that the appeal had been brought pursuant to s. 56 of the Review Act which confers a right upon the prosecution to appeal against an order made by the Local Court dismissing any summary proceedings, on a ground that involves a question of law alone. It was submitted, and it was not disputed by counsel for the defendant, that a judicial officer is obliged to provide adequate reasons for a decision, and that a failure to do so constitutes an error of law: Commonwealth Director of Public Prosecutions v Acevedo [2009] NSWSC 653 at [43]; Director of Public Prosecutions (NSW) v Elias [2013] NSWSC 28 at [44]; Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713 at [56].

Mr Kell submitted that the reasons for a judicial officer’s decision must be such as to permit the persons affected by that decision, any court to which an appeal may lie, and the community in general, to be aware of the essential chain of reasoning which had been followed: Wong v R [2001] HCA 64; 207 CLR 584 at [116] per Kirby J; Stoker v Adecco Gemvale Constructions Pty Limited and Anors [2004] NSWCA 449 at [41] per Santow JA (Mason P and Sheller JA agreeing). It was submitted that even when full weight was given to the fact that the Magistrate’s reasons were delivered ex tempore, and in a busy Local Court, they were entirely inadequate.

It was submitted that the reasons given in the present case amounted to little more than his Honour making passing reference to some (but not all) of the evidence and some (but not all) of the witnesses, before concluding that the prosecution had not established, beyond reasonable doubt, the elements of the offence. Mr Kell submitted that this had occurred in circumstances where:

It was submitted that as a consequence, the reasons did not reveal, be it adequately or at all, the basis on which the Magistrate had concluded that the charge should be dismissed, nor did they express any of the specific findings which were critical to that determination. It was submitted, in particular, that it was not possible to discern from the Magistrate’s reasons the essential chain of reasoning that had brought about the decision.

It was also pointed out that issues of supervision and residence had been squarely raised before the Magistrate in submissions made on behalf of the defendant, to which the prosecutor had responded. It was submitted that in these circumstances, it was significant that the Magistrate had made no reference at all to those matters in his reasons and, in particular, had expressed no finding as to whether or not the children had in fact “resided” with the defendant in the sense contemplated by clause (6)(d) of the relevant condition (at [14] above) and s. 9(1)(e) of the Act. It was submitted that the absence of any such reference inexorably led to the conclusion that Magistrate had failed to engage with, and properly consider, submissions made to him about a material issue, and had given no indication of the acceptance or rejection of those submissions.

Mr Kell submitted that in all of these circumstances the relief sought should be allowed. He submitted that in the event that error was established, the proceedings should be remitted to the Magistrate and that, in particular, there was no warrant for this Court to determine the ultimate question as to whether or not the elements of the offence were established.

Counsel for the defendant expressly conceded, both in his written submissions and in oral submissions before this court, that the Magistrate’s reasons were brief. However, he submitted that in the context of a consideration of reasons given by a judicial officer, brevity was not to be equated with inadequacy.

Counsel emphasised, in particular, those authorities which make it clear that proper allowances must be made when assessing the adequacy of ex tempore reasons given in a busy Local Court, where the pressures imposed upon a Magistrate are significant. It was submitted that once such allowances were made, the reasons given by the Magistrate in the present case satisfied the test of adequacy. In particular, it was submitted that the reasons given were sufficient to appraise the parties of “the broad outline and constituent facts of the reasoning on which (the Magistrate) acted”. In this regard, it was submitted that the Magistrate had outlined the facts, correctly identified the witnesses and their evidence, and had set out, in a reasoned way, the basis of this decision.

In the event that I came to the view that that the Magistrate’s reasons were inadequate, and that the error of law relied upon by the Director had been established, counsel for the defendant submitted that I should not remit the matter to the Local Court. He submitted that this Court retained a discretion as to whether or not to remit the matter and that having considered all of the evidence, I would be satisfied that the elements of the offence charged were not supported, and that I would conclude that the Magistrate’s determination that the charge should be dismissed was in fact correct.

In Director of Public Prosecutions v Sadler [2013] NSWSC 718 I made a number of observations, by reference to various authorities, regarding the obligation imposed upon a judicial officer to provide adequate reasons for his or her decision. In particular, I said (at [77] – [78]):

I also said (at [81]):

In Director of Public Prosecutions v Illawarra Cashmart Pty Limited [2006] NSWSC 343; (2006) 67 NSWLR 402, Johnson J said at 408; [18]-[19]:

Subsequently, in Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713 Johnson J said (at [56] and following):

Bearing in mind the principles set out in these cases, and even when full weight is given to the fact that the Magistrate’s reasons in the present case were delivered ex tempore in a busy Local Court, I have come to the view that they were inadequate.

The charge required the prosecution to establish, beyond reasonable doubt, that the defendant:

The Magistrate’s ultimate conclusion was that he was not satisfied beyond reasonable doubt that “each and every element of the charges (sic) had been established”. He reached that conclusion in the absence of:

For a number of reasons, I am unable to accept the submission of counsel for the defendant that the Magistrate outlined the facts, correctly identified the witnesses and their evidence, and set out in a reasoned way the basis of his decision. There was, in reality, no outline of the facts at all, much less any expression of findings of fact. Rather, there were passing references to some (but not all) of the witnesses, along with a passing references to some (but not all) of the evidence. As Johnson J stated in Wililo (supra), it is part of a Magistrate’s duty to state the facts found, and the legal principles which apply to those facts, for the purposes of reaching a verdict. Nowhere in the Magistrate’s reasons is there any indication at all of what factual findings he made.

Further, specific submissions were made to the Magistrate on behalf of the defendant regarding whether or not it could be said that the children in question “generally resided” with the defendant during the relevant period. Submissions were also made to the Magistrate regarding the extent of the defendant’s unsupervised contact of the children. The prosecutor joined issue with those submissions and put a contrary position. The submissions made on behalf of the parties in this regard were germane to the terms of paragraph 6(d) of the relevant notice, and the provisions of s. 9(1)(e) of the Act. They were thus germane to the issue of whether or not there had, in fact, been a failure on the part of the defendant to comply with his obligations. The Magistrate made no reference at all to the submissions of either party. That, in my view, reflects a failure on the part of the Magistrate to engage with, and properly determine, the issues which were before him. That failure is reflected in the inadequate reasons which were given.

For all of these reasons, the error asserted by the Director has been made out.

As I have previously indicated, counsel for the defendant submitted that even if I came to the view that the error asserted by the Director had been established I should not remit the matter to the Magistrate. Counsel submitted that it remained open to me to undertake a full assessment of the evidence, and come to the conclusion that the Magistrate’s dismissal of the charge was correct in any event. Such a course was opposed by the Acting Crown Advocate, who maintained that the appropriate order was to remit the matter to the Local Court.

In Sadler (supra) I made reference to a number of authorities which had considered the question of whether this Court, on a statutory appeal, has a discretion not to remit the matter to the Local Court where error is found (commencing at [101]):

In Council for the City of Lake Macquarie v Morris [2005] NSWSC 387; (2005) 63 NSWLR 263, Johnson J said (at [61]):

For the same reasons as those given in Sadler (supra) and Wililo (supra), the appropriate course in the present case is to remit the matter to the Magistrate. The question of whether the offence alleged is established, and the acceptance or rejection of the submissions made on behalf of the defendant at first instance, are matters properly resolved in the Local Court, not by this Court in the context of a limited statutory appeal.

The Director has sought costs but the defendant’s submissions do not canvass that issue. I will give the defendant an opportunity to make any submissions in this regard that he may wish to make.

For the foregoing reasons I make the following orders: