Godla v Director of Public Prosecutions (NSW)

1. [1]

   The applicant in this matter seeks the following orders by way of a notice of motion filed on 5 September 2022, as subsequently amended:

   1. (1)

      an order that the matter “be listed in front of 3 judges for hearing – urgent”;

   2. (2)

      “an injunction order against any new charges with retrospective effect – 27 June 22”, and a “prohibition order against any arrests and detention until the finalisation of this matter” (original emphasis);

   3. (3)

      an order for pro bono assistance.

2. [2]

   For the reasons which follow, none of the orders sought should be granted and the amended notice of motion should be dismissed with costs.

3. [3]

   After I had reserved judgment on the applicant’s motion it became apparent to me from the materials that the applicant wished to have an order made protecting his identity, pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) (Court Suppression Act). That issue had not been raised in argument before me. I provided the parties with a further opportunity to address on that issue. For the reasons given at the end of this judgment, I decline to make such an order.

Background

1. [4]

   In June 2016 the applicant was convicted at Manly Local Court of a charge of assault with an act of indecency contrary to s 61L of the Crimes Act 1900 (NSW), as then in force. The victim of this assault was a 17 year old woman. He was released under a good behaviour bond, for a period of 18 months, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW). As a consequence of this conviction his name was automatically entered on the Child Protection Register maintained under the Child Protection (Offenders Registration) Act 2000 (NSW) (CPOR Act). That Act defines a “child” as a person under 18 years of age: s 3(1). The automatic registration meant, in turn, that the applicant became subject to regular reporting obligations. Under the statutory scheme the registration was relevantly to continue for eight years from the date of sentence: ss 14, 14A(1)(a). The applicant regularly disputed that he should be on the Register.

2. [5]

   As a person on the Register he could not travel overseas without permission of a “competent authority”, pursuant to s 271A.1 of the Criminal Code (Cth). The relevant competent authority, it seems, is actually the Commissioner of the New South Wales Police Force. However, any such decision has been taken to be a decision under a federal enactment, for which review has been said to be available under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act): eg Zaharis v Commissioner of Police (2018) 131 SASR 576; [2018] SASC 143 at [64]-[68] per Doyle J. A delegate of the Police Commissioner refused the applicant permission to travel to India (his original home country) and Sri Lanka in May and June 2018. He tried to leave the country nevertheless, but he was stopped at the airport and his Australian passport was confiscated.

3. [6]

   There has been a series of litigious disputes involving the applicant which arise in some way out of his original conviction in 2016, which relevantly include the following:

   1. (1)

      In November 2017, some 17 months after conviction and sentencing, he filed an application for leave to appeal from the conviction in the District Court. This was dismissed by Baly DCJ (the 2017 District Court decision) on the basis that the Court had no jurisdiction to determine the appeal if more than three months had passed since the conviction or sentence, pursuant to ss 11 and 13 of the Crimes (Appeal and Review) Act 2001 (NSW) (CARA).

   2. (2)

      In August 2018 the NSW Civil and Administrative Tribunal dismissed the applicant’s attempt to challenge the decisions made by the delegate of the Police Commissioner to refuse his application to travel (NCAT 2018 decision). The Tribunal held that because those decisions were made under federal legislation the Tribunal did not have jurisdiction. The applicant also sought to challenge entry of his name on the Register, but that was also dismissed on the basis that registration was an automatic effect of the CPOR Act, and there was no decision to be reviewed.

   3. (3)

      In 2019 there was a subsequent proceeding in the Tribunal, although I will not discuss that further as a non-publication order was made with respect to the applicant’s name.

   4. (4)

      Also in 2019 the applicant sought belatedly to appeal his original conviction from 2016 in the Supreme Court, pursuant to ss 52-53 of CARA (2019 Supreme Court decision). I will not identify the Court’s decision here, as a non-publication order was made prohibiting publication of information that might tend to reveal the applicant’s identity as the plaintiff in that matter. Fagan J declined to extend time to appeal on the basis that, having reviewed all the materials, no viable grounds of appeal were disclosed regardless of the delay. His Honour did not find it necessary to determine whether such an appeal was still open in light of the 2017 District Court decision.

   5. (5)

      In that case the applicant also again sought orders that his name be removed from the Register, and orders relating to the retrieval of his passport and permission to travel. On these grounds, as with the attempt to appeal his conviction, Fagan J was sympathetic to the situation facing the applicant. His Honour was critical of the decision of the delegate of the Police Commissioner to refuse the applicant permission to travel in 2018. However, he found that the grounds were doomed to fail in light of the statutory scheme and summarily dismissed them. His Honour went to some lengths to explain that the applicant’s possible remedy with respect to the passport and travel issues lay in the Federal Court.

   6. (6)

      It appears that in 2021 the applicant was convicted in the Local Court of offences relating to breaches of his reporting obligations under the CPOR Act. I have been provided with a copy of a decision of Hanley DCJ in February 2022 rejecting an appeal from these convictions (the 2022 District Court decision). I infer from the applicant’s Summons in this Court that he was sentenced to 8 months and 8 days in custody for these offences.

   7. (7)

      It seems that the applicant then faced yet further charges for failure to comply with his reporting obligations. That emerges from the decisions of Hamill J and Rothman J in the Supreme Court, with which I have been provided, declining to vary certain bail conditions with respect to those charges (2022 Supreme Court bail decisions).

4. [7]

   The applicant filed a summons in the supervisory jurisdiction of this Court seeking a range of orders. It appears that he seeks to challenge each of the decisions just listed, along with the original decision of the Manly Local Court to convict him in 2016.

5. [8]

   It is neither necessary nor appropriate for me to express any final view on the relief sought, but it is relevant to note that much of it appears most unlikely to succeed and/or seeks relief not available in this Court:

   1. (1)

      Prayer 2 of the Summons says he seeks “leave to appeal against all the decisions below”. However, the Summons is not in the form of a notice of appeal, nor is it a summons seeking leave to appeal.

   2. (2)

      Prayer 5 seeks that his bail be dispensed with. That is a matter appropriately addressed in other courts including ultimately, if needs be, the Court of Criminal Appeal.

   3. (3)

      Prayer 6 seeks writs of certiorari for all of the challenged decisions, which include the 2019 Supreme Court decision and the 2022 Supreme Court bail decisions. That remedy is not available against a decision of a judge of the Supreme Court acting in their capacity as such: see eg Penson v Titan National Pty Ltd [2015] NSWCA 404 at [8] per Meagher, Gleeson and Simpson JJA, and authority there cited.

   4. (4)

      Prayers 7, 10, 11 and 14 seek injunctive/prohibitive orders similar to those that he seeks by his motion, and which I discuss below.

   5. (5)

      Prayer 8 seeks reinstatement of his Australian passport. Taking account of the decision of Fagan J, it appears unlikely that this Court has jurisdiction to make such an order.

   6. (6)

      Prayer 9 seeks restoration of a range of property, including photos, and compensation in the sum of $1.0 million. Prayer 18 also seeks damages for, amongst other things, defamation. Those do not appear to be orders falling within the supervisory jurisdiction of this Court, even if he could make out any cause of action.

   7. (7)

      Prayers 12 and 13 are specifically directed to quashing his original conviction, and, I infer, the 2022 District Court decision. Prayer 17 seeks to set aside “all convictions”.

   8. (8)

      Prayer 15 seeks a declaration that the applicant is “not a registrable person under the Child Protection Act”. Any argument in support of this declaration will need to grapple with the decisions of Fagan J and the Tribunal to the effect that his registration is a consequence of the statutory scheme.

   9. (9)

      Prayer 16 seeks an “immediate mediation with my children and ex-wife”. They are not parties to this litigation, and no legal claim against them is articulated.

6. [9]

   On its face, the Summons manifests a substantial lack of understanding of what types of claim can appropriately be brought within the Court of Appeal.

7. [10]

   It is apparent both from the Summons and from his submissions that the applicant’s intent and hope is that all of his legal complaints be addressed and resolved in this Court. One can have sympathy for that aspiration. But the Court of Appeal is not a one stop shop for resolving all and any legal disputes. No court in Australia is.

Listing before three judges and expedition

1. [11]

   It is not appropriate to make an order that this matter be listed before three judges, as sought by the applicant. In the ordinary course matters filed in this Court will ultimately be listed before two or three judges: Supreme Court Act 1970 (NSW), ss 43, 46-46B. But other orders may be made which prevent that from occurring, such as orders which strike out all or part of a claim, or remit all or part of the matter to a Division of the Supreme Court: note eg Supreme Court Act, s 51; Z v Mental Health Review Tribunal (No 2) [2022] NSWCA 131 at [53]-[57]. Here, taking account of the points I have noted above, it is possible that such orders could be sought or made. For example, if his claims for compensation and damages are not struck out then they may well be remitted. There is no basis made out here to seek to pre-empt any such applications or orders.

2. [12]

   I understand the word “urgent” contained in the amended motion to be an application for expedition. The applicant explained that his parents live in India, his mother is seriously ill, and he has not been able to see them for some six years. He also said that “I am tired and exhausted and I cannot take this anymore”. His desire for a quick resolution of all his legal issues is very understandable.

3. [13]

   Nonetheless, given the very significant problems with the Summons that I have identified above, it would be inappropriate for me to order that this matter be heard expeditiously by three members of this Court. This is a matter which is likely to benefit from continued careful case management by the Registrar. Further, as I have indicated – and as was also addressed in the 2022 Supreme Court bail decisions – it is unlikely that this Court can address the impediments to him travelling overseas, namely his need for permission from a competent authority, and his lack of a passport.

The injunctive/prohibitive relief sought

1. [14]

   No doubt the question of when, if ever, a court can issue an injunction or similar order to prevent the filing of new criminal charges, or the making of arrests, is an interesting one. This is not the case to resolve that question. If such orders could ever be made it would only be in extraordinary circumstances.

2. [15]

   The effect of the orders sought would prevent the arrest of the applicant for an indeterminate period of time, regardless of any crimes he may commit. The proposition only has to be stated to be seen as unsupportable.

3. [16]

   The legal problems with these proposed orders are myriad and deep. It suffices to note the following, drawing upon the helpful submissions made on behalf of the State on the instructions of the NSW Police Force. The applicant has not identified any basis in law or fact which might give rise to a right to such relief. There is no evidence of repeated, or threatened, unlawful interference with the applicant’s legal rights. There is no evidence that the applicant will suffer any imminent or substantial damage or that, even if he did, damages would not be an adequate remedy. At least on one reading, the relief sought is against the world. And the notion of a retrospective injunction – potentially putting people in contempt of orders not then in force – is highly problematic, to put it with a degree of mildness.

4. [17]

   The application for these orders is misconceived.

Referral for pro bono assistance

1. [18]

   Rule 7.36 of the UCPR relevantly provides as follows:

2. [19]

   On its face there is much to be said for the view that the power granted by r 7.36(1) is an administrative one. In Rizk v FA Constructions Australia Pty Ltd [2016] NSWCA 155, at [15], Basten JA, Leeming JA and Sackville AJA noted the following:

3. [20]

   Their Honours expressed doubt that a decision by a judge of appeal was reviewable by the Court of Appeal pursuant to s 46(4) of the Supreme Court Act: at [13]-[22]. Ultimately they did not express a concluded view due to the lack of argument on the point: at [22]. It is certainly not necessary for me to address that issue here.

4. [21]

   Nevertheless, the apparently administrative nature of the broad discretionary power does tend to suggest that, to the extent that reasons are required at all (which is open to question), they may be given in short form. That point is reinforced by r 7.36(3), which authorises such applications to be determined in chambers on the papers. Of course, where a referral order is made the judge may well consider it useful to explain why that has been done, as this may aid any subsequent legal practitioner who is considering whether to accept the referral and what if any points merit particular attention.

5. [22]

   On the hearing of this motion counsel for the State supported the applicant’s request for referral. I understood this support was given because of the complexity of the intertwining State and federal legal regimes, along with the hope that legal advice would assist the applicant to divine what reasonable legal claims he may have, and persuade him to desist with those that do not have real prospects of success. That reasoning has some force. The applicant himself made similar submissions.

6. [23]

   Yet “pro bono assistance is a valuable and scarce resource, dependent on the goodwill of members of the legal profession, which should not be lightly dissipated”: Renshaw v New South Wales Lotteries Corporation Pty Ltd [2021] NSWCA 41 at [11] per Brereton JA. In this case I decline to refer the applicant for pro bono assistance, taking account of the following.

7. [24]

   No evidence has been presented as to the financial means of the applicant, nor his capacity to seek legal assistance outside the scheme – these being potentially relevant considerations identified in r 7.36(2).

8. [25]

   In 2018 the applicant was referred for pro bono assistance for the proceedings which led to the 2019 Supreme Court decision. It appears that the applicant obtained some advice from a barrister, although that barrister was said to be unwilling to represent him in the proceeding itself. Given that that referral was some four years ago, r 7.36(2A) does not apply. Nevertheless, that rule illustrates that, given the scarcity of the resource, there should be some hesitation about repeatedly referring a person for pro bono assistance.

9. [26]

   Hanley DCJ stated the following in the 2022 District Court decision:

10. [27]

    These statements indicate that Mr Godla has had the benefit of further pro bono assistance recently, albeit presumptively not pursuant to r 7.36.

11. [28]

    Many of the issues sought to be raised in this proceeding were the subject of careful and sympathetic consideration by Fagan J, and some of them were also considered in the other decisions identified above. There is a repetitive quality about the applicant’s arguments to various courts and tribunals. So much is reinforced by the observations of Hanley DCJ about what his Honour had “repeatedly explained”. The applicant stated in written submissions that “I plead for legal assistance to address all issues together and now. And I need assistance for all of them and not by segregating matters”. Any legal advice he receives is likely to tell him that all of his issues cannot be resolved in this Court, just as they could not all be resolved in the District Court. In light of the materials and the impression I formed on the hearing of this motion, I am not persuaded that the applicant will heed advice which contradicts his desire to have all of his problems resolved in one court. That view suggests that there would be limited utility in making a referral, and it would not be an appropriate use of the resource.

12. [29]

    In all the circumstances I am not persuaded that it is in the interests of justice that the applicant be referred under r 7.36(1).

Application to protect the applicant’s identity

1. [30]

   The applicant sought that an order be made under the Court Suppression Act to protect his identity. The State neither opposed nor consented to his application, but it provided me with helpful submissions on the issues raised. The representative of the DPP adopted the submissions and position of the State.

2. [31]

   The applicant sought, in particular, a pseudonym order. As required by ss 11 and 12 of the Act, he addressed the issues of geographic and temporal reach, asking that the order apply throughout Australia and for a period of 25 years. The Act also requires that an order made under the Act specifies the ground or grounds on which it is made: s 8(2). In his submissions he sought to base his application on the ground in s 8(1)(d), taking account of s 8(3). The former provision states that an order may be made if “the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including sexual touching or a sexual act within the meaning of Division 10 of Part 3 of the Crimes Act 1900)”. Section 8(3) provides:

3. [32]

   There is room for argument about whether this proceeding should be characterised as “criminal proceedings” of itself. But even if it is not, it is still open for the applicant to assert that the claimed undue distress and embarrassment arises from the original Manly Local Court criminal proceeding, which led to his name being placed on the Register. Insofar as he relies on the ground in s 8(1)(d), however, he would then need to show that there are “exceptional circumstances” warranting the making of an order, consistently with s 8(3).

4. [33]

   In any event, I am prepared to assume that he might also seek to invoke the grounds in s 8(1)(a) and (e), namely that the order is “necessary to prevent prejudice to the proper administration of justice”, or that “it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice”.

5. [34]

   The reasons he gave in support of his application, in summary, were that: being known to be on the Register has caused him to wrongly be accused of being a rapist or paedophile, and has generally caused him significant stress and distress; that if the fact he is on the Register is known – and becomes capable of being found on the internet if this judgment is published with his name in it – then that will significantly damage his already limited employment prospects; his lack of employment harms him financially and in terms of his dignity. I accept these concerns are not insignificant.

6. [35]

   He also stated from the bar table that he had previously been assaulted whilst in custody by people that he claimed had found out he was on the Register from internet searches. He sought time to put on affidavit evidence to this effect. I declined to give him that opportunity. However, for the purposes of determining this application I am prepared to accept his claim.

7. [36]

   Fagan J made an order in the proceedings before him that “publication is prohibited of the name of the plaintiff in these proceedings and of any information that might tend to reveal his identity as the plaintiff”. The reason his Honour gave for making the order was that it was warranted under s 8(1)(e) because the applicant’s embarrassment would be exacerbated by him being named in connection with those proceedings, and that publication of his name would potentially defeat the restriction in s 21E of the CPOR Act.

8. [37]

   Similarly, as I have noted above, the Tribunal made an order protecting the applicant’s identity in one of the matters that came before it. That order was said to be desirable because it was “consistent with the legislative purpose which is evident in s 21E”.

9. [38]

   Section 21E provides as follows:

10. [39]

    The section does not apply to a court. It is not expressed to do so, and a court is not a “person”: see eg Kizon v Palmer (1997) 72 FCR 409 at 430-1 per Lindgren J (Jenkinson and Kiefel JJ agreeing at 412-413), and Osborne v R [2014] NSWCCA 17; (2014) 238 A Crim R 417, at [8]-[13] per Basten JA. Subsection (c) itself contemplates that a court may made an order overriding the duty of non-disclosure. The section requires persons involved in the administration or execution of the scheme provided for by the Act to keep information relating to registrable persons confidential, subject to the exceptions specified, at risk of criminal penalty.

11. [40]

    Whilst the provision does not apply directly to a court, it does manifest a legislative choice about limiting publicity with respect to who is on the Register. In considering how that choice interacts with the principles of open justice it is useful to have regard to the purposes lying behind s 21E.

12. [41]

    The section was inserted into the CPOR Act by the Child Protection (Offenders Registration) Amendment Act 2007 (NSW). The Minister’s second reading speech tabled in the Legislative Council included the following (Hansard, 5 December 2007):

13. [42]

    In the second reading debate that followed the Reverend Fred Nile raised a concern about secrecy:

14. [43]

    In a reply speech, a government Minister – oddly, not the one who tabled the second reading speech – responded:

15. [44]

    This reply speech gives a series of justifications for preserving a degree of secrecy: that publicity is likely to reduce compliance with reporting obligations; that a fully public register might enable paedophiles to form networks; that in some cases it could implicitly identify victims; it may discourage the reporting of familial child abuse; it might encourage frequent moving of registered offenders, rendering it harder to monitor them; and that it may encourage vigilante activity. These are plausible and significant concerns. They relate not only to the safety of those on the Register but also raise issues of broader public interest.

16. [45]

    In my view such concerns, as reflected in s 21E, are relevant matters to consider in this sort of application. At the least, they may be relevant to whether there is a public interest in non-disclosure that significantly outweighs the public interest in open justice: see s 8(1)(e) of the Court Suppression Act.

17. [46]

    That being said, it is also relevant that registration is an automatic effect of the CPOR Act scheme, which follows from convictions being recorded in open court. There is a significant public interest in such criminal matters being conducted openly. So much is reflected in s 8(3) of the Court Suppression Act. That interest extends to appeals or applications for judicial review relating to such convictions.

18. [47]

    These type of arguments were considered by McLeish JA, speaking for the Victorian Court of Appeal, in MSB (a Pseudonym) v Chief Commissioner of Police (2018) 57 VR 360; [2018] VSCA 345, being a case in which a registered offender under Victorian legislation similar to the CPOR Act had sought a declaration that his name should not be on the Register. That declaration had been refused at first instance, and that decision was upheld on appeal. Nevertheless, the Court of Appeal upheld a pseudonym order on the following basis:

19. [48]

    There is force in this analysis. However, it is not necessary for me to reach a concluded view on the various points and arguments.

20. [49]

    In this case there is one decisive consideration. The fact that the applicant is on the Register has already been disclosed in two Federal Court decisions: Godla v Commissioner of Police, New South Wales Police Force [2020] FCA 489 and Godla v Commissioner of Police, New South Wales Police Force [2021] FCA 1545. In the first of these cases the applicant had applied for a non-publication order but it was refused by Bromwich J: see at [7]-[13]. It is not necessary for me to consider whether I agree or disagree with his Honour’s reasoning, taking account of the points made in the second reading debate and in the reasoning of the Victorian Court of Appeal.

21. [50]

    The information which the applicant seeks that I suppress is already in the public domain. The Federal Court judgments are just as capable of being found by internet searching as this judgment will be. True, being named in another judgment may slightly increase the prospect of his name being found in internet searches, and it is conceivable that the applicant’s proceeding in this Court might attract some publicity. It is also true that some time has passed since those judgments, but it is not a substantial period. The force of his points about possible detriment is substantially reduced by the prior publications. There would be limited utility in making an order of the kind sought.

22. [51]

    The applicant requested that I make an order relating to the Federal Court judgments. That is not something authorised by the Court Suppression Act. When I indicated as much to the applicant in the course of argument he said he might apply to the Federal Court for suppression orders. Given that the time for appealing those decisions has well passed, and given that Bromwich J has already rejected such an application, I consider that the applicant has low prospects of obtaining any such order.

23. [52]

    In those circumstances, and without even considering the possible significance of s 8(3), the interests of open justice are not outweighed by the matters the applicant has raised. I am not persuaded that it is necessary or appropriate to make an order under the Court Suppression Act.

Costs and orders

1. [53]

   I was assisted by the written and oral submissions made on behalf of the State and the Director of Public Prosecutions. They should have their costs on the motion.

2. [54]

   For the above reasons, the orders of the Court are as follows:

   1. (1)

      The applicant’s notice of motion originally filed on 5 September 2022, and subsequently amended, is dismissed.

   2. (2)

      The applicant is to pay the costs of the Director of Public Prosecutions (NSW) and the State of New South Wales on the motion.

   3. (3)

      The applicant’s application for a non-publication order is dismissed.