DKG v Commissioner of Police

1. [1]

   WARD P: I agree with Adamson JA.

2. [2]

   ADAMSON JA: DKG (the applicant) seeks an extension of time for leave to appeal and, if the extension of time is granted, leave to appeal against the decision of Fagan J (the primary judge), who dismissed both his amended summons filed 24 September 2018 and a notice of motion seeking leave to file a further amended summons. The respondent to the appeal is the Commissioner of Police (the respondent), for whom Ms Keesing appeared.

3. [3]

   The applicant, who is presently in custody, informed the Court in writing (by facsimile sent on 14 March 2023) that he was content for the matter to be dealt with on the papers, without any appearance by him. As he did not communicate with the respondent’s representatives, Ms Keesing appeared at the hearing of the application which was listed to commence at 2pm on 16 March 2023. Ms Keesing indicated that she did not wish to be heard and was content that the matter be dealt with on the papers.

4. [4]

   The applicant requires an extension of time pursuant to r 51.10(2) of the Uniform Civil Procedure Rules 2005 (NSW), as his summons seeking leave was filed out of time (the order for his conviction having been made on 7 June 2019). In the facsimile dated 14 March 2023 (referred to above), the applicant referred to documents which he had sent to the Court which related to his application for an extension of time. As no such documents have been received by the Court, I propose first to address whether leave ought be granted, on the assumption that no extension of time is required. If I consider that leave ought not be granted in any event, it will not be necessary to address the application for an extension of time. The paragraph references are references to paragraphs in the primary judge’s reasons.

5. [5]

   The primary judge treated the amended summons as an application for leave to appeal under Part 5 (specifically ss 52 and 53) of the Crimes (Appeal and Review) Act 2001 (NSW): [10]-[11], [19], [55]. It was dealt with and dismissed on that basis: [17]-[19], [22], [55]. The balance of the decision and the primary judge’s orders are, accordingly, interlocutory. Leave is therefore required in relation to the totality of the proposed appeal: Supreme Court Act 1970 (NSW), ss 101(2)(e) and 101(2)(h).

6. [6]

   In order to determine whether leave ought be granted, the principle expressed by Gleeson JA (Macfarlan and Payne JJA agreeing) in Secretary, Dept of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28] applies:

7. [7]

   Before turning to the question whether leave ought be granted, I propose to summarise the procedural history of the matter, as referred to by the primary judge.

8. [8]

   By amended summons filed in the Supreme Court on 24 September 2018, the applicant sought orders that his conviction in the Local Court of assault with an act of indecency under s 61L of the Crimes Act 1900 (NSW) (as then in force) be quashed and that his name be removed from the Child Protection Register (the Register) maintained under the Child Protection (Offenders Registration) Act 2000 (NSW) (Child Protection Act).

9. [9]

   The applicant also sought, by notice of motion, leave to file a further amended summons which added as parties to the proceedings the Director of Public Prosecutions (NSW) (DPP) and the Commonwealth Department of Foreign Affairs and Trade (DFAT) and added claims for relief that: he be granted an extension of time for leave to appeal against his conviction in the Local Court pursuant to s 53 of the Crimes (Appeal and Review) Act 2001 (NSW); his Australian Passport be reissued; and he be awarded damages as a result of his having been refused permission to travel overseas.

10. [10]

    The primary judge recounted the procedural history of the matter, which can be shortly summarised.

11. [11]

    On 28 April 2016, the applicant was found guilty by the Local Court at Manly of assault with an act of indecency contrary to s 61L of the Crimes Act 1900 (NSW), as then in force: [1]. An order for his conviction was made on 7 June 2016. As the victim of the assault was a 17-year-old woman, the applicant, upon being sentenced, became a “registrable person”. The respondent was obliged by the Child Protection Act to enter the applicant’s name on the Register maintained under that Act: [1] and [23]-[26].

12. [12]

    As a person on the Register, the applicant is prohibited from travelling overseas without the permission of the respondent, who is the relevant “competent authority” pursuant to s 271A.1 of the Criminal Code Act 1995 (Cth) (Criminal Code): [34]-[39].

13. [13]

    On 3 November 2017, the applicant filed an application in the District Court for leave to appeal his conviction, which was listed on 5 February 2018. As the application was 14 months out of time, it could not be dealt with as the District Court had no jurisdiction to entertain any such application filed after 7 September 2016 (there being an absolute 3-month limit from the date of conviction, 7 June 2016): ss 11 and 13 of the Crimes (Appeal and Review) Act: [20]-[21].

14. [14]

    On 11 June 2018, following the refusal of permission by a delegate of the respondent for the applicant to travel overseas, the applicant nevertheless sought to leave the country. He was stopped at the airport and his passport was confiscated. The following day, he was notified that Commander Kerlatec (as the respondent’s agent) was considering making a request under s 12(1A) of the Australian Passports Act 2005 (Cth) to the Minister to cancel his passport. This eventuated and the applicant’s passport was cancelled: [45]-[48].

15. [15]

    On 16 July 2018, the applicant applied to the NSW Civil and Administrative Tribunal (NCAT) for review of the respondent’s delegate’s decision to refuse him permission to travel overseas; the Minister’s decision to cancel his passport; and the inclusion of his name on the Register. Senior Member Lucy dismissed the application on 30 August 2018: [49].

16. [16]

    On 7 September 2018, the applicant filed a summons in the Supreme Court which named the “NSW Police” and the “Australian Federal Police” as defendants and sought “review of convictions and sentences under s 78 of the Crimes (Appeal and Review) Act”: [2]. Subsequently, on 24 September 2018 the applicant filed an amended summons against the NSW Police and the Office of the Children’s Guardian claiming orders that his conviction be quashed and that his name be removed from the Register.

17. [17]

    The amended summons was the operative document on which the applicant’s claims were litigated in the Court below, and in respect of which judgment was delivered on 10 May 2019: [2].

18. [18]

    I note for completeness that the applicant has taken other procedural steps in other forums but it is not necessary to detail these as the present applications relate only to the primary judge’s decision of 10 May 2019.

19. [19]

    The primary judge addressed the proceedings in the Local Court as follows:

20. [20]

    The primary judge refused leave to file the further amended summons because grounds (1)-(7) raised were neither viable nor had any prospect of success, having regard to the way in which the matter was conducted in the Local Court and the factual findings made by the Local Court, which had the advantage of seeing and hearing the witnesses: [17]-[19].

21. [21]

    The primary judge also noted that the consequences of the conviction were that the applicant became a registrable person under the Child Protection Act, which had certain consequences mandated by the statute: [24]-[26]. The primary judge, at [27], concluded that there was no power in any court or administrative body to remove the applicant’s name from the Register.

22. [22]

    The primary judge referred to the effect of s 271A.1 of the Criminal Code to prohibit overseas travel by a person such as the applicant unless a competent authority (in this case, the respondent) has given permission: [37]. The primary judge, at [42], noted that the Federal Court and Federal Circuit Court have jurisdiction to review such decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) but that State Courts do not: s 9 of the ADJR Act.

23. [23]

    At [50], the primary judge said, of the avenues for review available (and unavailable) to the applicant:

24. [24]

    The primary judge concluded, at [54], that the Supreme Court had no jurisdiction to grant relief in respect of the refusal of permission for the applicant to travel overseas or the re-issue of his Australian passport.

25. [25]

    The primary judge noted, at [55], that the amended summons (which had been filed) also sought to challenge the conviction and sentence as well as to seek removal of the applicant’s name from the Register, permission to travel overseas and re-issue of the applicant’s passport. As none of those challenges warranted leave, since the relief the applicant sought was either not available at all or not available in the Supreme Court, the primary judge dismissed the summons pursuant to UCPR, r 13.4 (which provides for summary dismissal of frivolous or vexatious proceedings): [55], [58].

Consideration

1. [26]

   The applicant, through his counsel, conducted the Local Court proceedings on the basis that he did not touch the complainant. In these circumstances, it was not open to the applicant to challenge his conviction on the basis that she consented to his touching her because he is bound by the conduct of his case by his counsel: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [8] (Gleeson CJ). Nor was it open to him to challenge the finding that the touching amounted to an act of indecency, in circumstances where that matter was not challenged at first instance. The applicant has not raised any arguable ground of appeal against the primary judge’s refusal of leave to appeal against the conviction.

2. [27]

   The applicant has expressed, in his written submissions, his grievance about the consequences of his conviction in the Local Court, which include limitations on his right to travel and to obtain work in certain areas. Many of these consequences, which are mandated by statute, arise from his name being on the Register. For the reasons given by the primary judge, neither this Court nor the Court below has jurisdiction to alter or ameliorate those consequences of his conviction. The applicant has not identified any arguable error in the primary judge’s reasons for dismissing the amended summons under UCPR, r 13.4.

3. [28]

   In these circumstances, there is no proper basis to grant leave to appeal. Accordingly, it is not necessary to address whether time ought be extended for the applicant’s application for leave to appeal. In these circumstances, I propose to extend time in order that the leave application can be refused.

Costs

1. [29]

   The respondent submits that the application ought be dismissed with costs. However, as the applicant has not been heard on the question of costs, I propose to make provision for the respondent to seek costs, if the respondent sees fit.

Proposed orders

1. [30]

   For these reasons, I propose the following orders:

   1. (1)

      Extend the time for filing the summons seeking leave to appeal to 27 June 2022.

   2. (2)

      Refuse leave to appeal.

   3. (3)

      Grant leave to the respondent to apply for an order for the costs of the application, such application to be made within 7 days.