Toth v Director of Public Prosecutions (NSW)

LEEMING JA: I agree with White JA.

WHITE JA: On 15 March 2016 the applicant, Andrew Leslie Toth, stood charged in the Local Court with an offence of filming a person’s private parts contrary to s 91L of the Crimes Act 1900 (NSW). Section 91L(1) provides:

Section 91L is in Div 15B of Pt 3 of the Crimes Act. Section 91I (also in Division 15B) relevantly provides:

On 15 March 2016 a magistrate of the Local Court (Viney LCM) concluded that the offence was made out. On 30 May 2016 Mr Toth was formally convicted of the offence. He was ordered to enter into a good behaviour bond for a term of 18 months to date from 30 May 2016. On the same day Mr Toth filed a notice of appeal to the District Court against his conviction. He appealed as of right pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) (the “Crimes (Appeal and Review) Act”).

The appeal was heard on 22 March 2017 by her Honour Judge Syme (the “primary judge”). Her Honour delivered an ex tempore judgment and dismissed the appeal.

Pursuant to s 63(2) and (3) of the Crimes (Appeal and Review) Act the execution of the sentence imposed by the Local Court was stayed until the determination of the appeal by the District Court. Immediately following the dismissal of the appeal the primary judge confirmed the orders by stating:

No issue was raised in these proceedings as to the appropriateness of those orders having regard to the primary judge’s order dismissing the appeal.

No appeal lies to this Court from orders of the District Court dismissing the appeal to that Court from the conviction recorded in the Local Court. On 24 July 2017 Mr Toth filed a summons for judicial review of the decision of the primary judge. The effect of s 176 of the District Court Act 1973 (NSW) is that an applicant must establish jurisdictional error on the part of the District Court (see e.g. Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [10]; Morgan v District Court of New South Wales [2017] NSWCA 105; (2017) 345 ALR 621 at [32]; Gelle v Director of Public Prosecutions (NSW) [2017] NSWCA 245 at [48]).

The summons was filed outside the period of three months prescribed by Uniform Civil Procedure Rules 2005 (NSW) r 59.10(1). The respondent, the Director of Public Prosecutions (the “DPP”), did not oppose the making of an order for extension of the time for commencement of these proceedings for judicial review. The transcribed reasons for judgment did not become available to Mr Toth until 21 June 2017. An order should be made under r 59.10(2) extending the time for commencing these proceedings to the date of the filing of the summons.

For the reasons which follow the orders of the District Court should be quashed and the matter remitted to the District Court for determination of the appeal.

The circumstances of the charge were as follows. According to the evidence given in the Local Court, on 1 March 2015 at approximately 3.50pm a Mr Paul Hedderman was walking down a flight of stairs at Town Hall station. As he was walking down the stairs he noticed a man coming up the other way with an object in his hand. He observed that it was a bright object and was like a pen. The man holding the pen-like object was Mr Toth. Mr Hedderman gave evidence that Mr Toth pointed the pen-like object up the skirt of a young woman who was walking up the stairs in front of Mr Toth. There was no dispute that the pen-like object was a camera. Mr Toth did not deny that he was filming the woman in question. It was his evidence that his purpose in filming was to show what people at the bottom of the stairs could see when the woman walked upstairs. He gave evidence that he placed the camera in such a way that it would record what people at the bottom of the stairs would have seen, had they been looking. He said that the camera was held outside of the hemline of the girl’s skirt but underneath the hemline, by which, in context, he clearly meant below the hemline. He gave evidence, which was unchallenged, that at the time he was researching and writing a book that became two books, one of which was called Up Skirting and the other was called Female Flashing. Mr Toth said that initially he had intended to only write one book, but as he researched it, he found that the subject was too broad. The book called Up Skirting was published in May 2015. An excerpt of that book was tendered. The other book called Female Flashers was, at the time of the Local Court hearing, a work in progress. He had written and self-published on Amazon a number of books on exhibitionism and on many other topics.

The young woman in question was oblivious to having been filmed. She has not been identified. Mr Hedderman said that she was wearing a frilly skirt, it was probably knee length or a bit shorter. Mr Hedderman said that at first the “pen” was outside the skirt, but Mr Toth had his hand up the skirt so that the skirt was covering his hand. Mr Hedderman was unshaken in cross-examination that Mr Toth put the pen up the girl’s skirt, although she remained oblivious to his doing so. Mr Hedderman turned and followed Mr Toth up the stairs. He said “What do you think you’re doing?”, and Mr Toth said “What, what? Nothing.” Mr Hedderman then accused him of filming up the girl’s skirt with the pen. Mr Hedderman gave evidence that Mr Toth responded “No the light wasn’t on”. Then Mr Hedderman grabbed the pen. Mr Toth pressed the pen once or twice to show how a green light would turn on and off. He told Mr Hedderman that the light went on when the pen was recording and that the light was not turned on. Mr Hedderman detained Mr Toth by holding on to a backpack that Mr Toth was wearing. A security guard in the vicinity came over and called the police. Video footage was later extracted from Mr Toth’s pen-camera.

Mr Toth denied that he filmed from under the woman’s skirt, as distinct from behind and below it. He said the camera was outside her skirt at all times. This is consistent with the video taken by his pen-camera. In the last second or so of the 45-second video there is brief vision of the young woman’s underwear. Mr Toth said that that was the result of the skirt flipping back and that he never deliberately filmed under the skirt. He admitted that in response to Mr Hedderman’s accosting him and asking him what he was doing, he said “Nothing”. He said that he so answered because Mr Hedderman had grabbed him by the wrist and he panicked.

Before the Local Court, Mr Toth was represented by a solicitor, a Mr Whitbread. He identified the only issue as being whether the prosecution had proved beyond reasonable doubt that the filming had been made for the purpose of obtaining or enabling another person to obtain sexual arousal or sexual gratification. He submitted that Mr Toth was a long-standing author who had published multiple books on exhibitionism, voyeurism and similar subjects, and his denial that the filming was done for a sexual purpose should be accepted.

On the question of whether Mr Toth placed the camera pen up the woman’s skirt as described by Mr Hedderman, or below and behind as described by Mr Toth, the learned Magistrate found as follows:

The effect of these reasons is that the magistrate did not find that Mr Toth positioned his pen-camera under the woman’s skirt, but rather he filmed her skirt and posterior from behind and below and the image of her private parts, as defined in s 91I, was taken when her skirt flipped back.

The learned magistrate rejected Mr Toth’s evidence that the filming was undertaken as part of Mr Toth’s research and found that the surreptitious nature of the filming clearly indicated that the filming was done for the purpose of some form of sexual gratification. Her Honour also found:

Mr Toth did not appeal from the sentence imposed by the Local Court. On the hearing of his appeal against the conviction Mr Toth represented himself.

Pursuant to s 18 of the Crimes (Appeal and Review) Act the appeal against conviction to the District Court was by way of rehearing on the basis of the evidence given in the Local Court, subject to any fresh evidence that might be given with leave. No direction was given under s 19 of the Crimes (Appeal and Review) Act for a person to attend and give evidence in person. The DPP tendered the Crown bundle, being the evidence before the Local Court. Mr Toth tendered an abridged version of the book he was said to have been researching, “Female Flashers”. It was admitted without objection. No other additional evidence was adduced.

The primary judge had other matters in her list. In the morning she received the Crown bundle and the matter was adjourned until 2pm. On resumption the primary judge informed Mr Toth that the matter would proceed as a rehearing of what happened in the Local Court. Mr Toth then applied for a stay of the proceeding on the ground that s 91L contained only a narrow protection for women’s rights and that public sentiment or public opinion would demand rejection of Mr Toth’s answers to the charge. He submitted that the Court would be under an unacceptable pressure to convict so as not to set a precedent for the sort of filming he undertook, even if the defence were valid. He said that a stay should be granted until the law caught up with public sentiment. He submitted that:

In substance his submission was that if he were convicted, a reasonable person might apprehend that the conviction was due to the pressure of public sentiment on the judge. The application was rejected.

After hearing submissions from the Crown Mr Toth provided the primary judge with written submissions. In the Local Court the solicitor representing Mr Toth had stated that

However, in his written submission before the District Court Mr Toth took issue with each of the elements of the offence under s 91L. He conceded that he filmed the woman’s private parts, albeit fleetingly, but submitted that the Crown had not adduced any evidence that he intentionally filmed the woman’s private parts.

He submitted that the video footage of 45 seconds showed that only about one per cent of the footage caught the subject’s private parts. He submitted that if the camera had been under the subject’s skirt, as was alleged, then a deliberate intention to film the private parts could readily be inferred, but the camera at all times was outside the skirt, even for the split second that the underwear came into view. He submitted that filming of the private parts was not deliberate or intentional.

Secondly, in his written submission, Mr Toth contended that the Crown had not established that the filming was done without the consent of the person being filmed. He accepted that there was no explicit consent, but submitted that there was insufficient evidence to establish that there was no implied consent to the filming. He submitted that it should be presumed that the subject knew that her skirt could move or flip back during the climbing process, that the stairs were fairly steep, it was crowded so that were a lot of people whose eye level would have been below the hemline of the skirt as the subject would have known, and that cellphones with cameras were very common. He submitted that the subject had two choices: either to hold down her skirt while walking up the stairs, or to allow the skirt to move and flip back, and if she chose not to hold down her skirt then an inference of an implied consent to being filmed was available. He submitted that s 91L was never intended to prevent members of the public from filming public things in public places. He also submitted that the Court could not find that he knew that there was no implied consent.

This was a difficult submission to make good and was treated by the primary judge with scepticism and scorn. In the course of oral submissions Mr Toth sought to relate it to a separate submission, namely that the Crown had not established that a reasonable person in the position of the woman in question would reasonably expect that her private parts could not be filmed. He submitted on the basis of findings made by the magistrate that because the skirt was a reasonably loose fitting item that had a tendency to flip back such that it could easily be anticipated that the skirt would flip back, there could be no reasonable expectation that the person’s private parts could not be filmed. He stressed that this element of the offence required a reasonable expectation that such filming could not be done, not that it would not be done. It was irrelevant whether a reasonable person would reasonably expect that her private parts would not be filmed, if she would reasonably expect that they could be.

Mr Toth also submitted that the Crown had offered “no proof of sexual gratification”. He submitted that the Crown offered an inference that the filming had been done for sexual gratification based on the allegation that the camera was under the subject’s skirt, but that was not proved because it was refuted by video footage showing that the camera was outside the skirt at all times. He submitted that surreptitiousness was not proof of prurience and that s 91L required both an absence of consent, which he submitted was a proxy for surreptitiousness, and that the filming be for sexual gratification. He submitted that one element could not be used to prove another. He also submitted that he had offered a viable and non-prurient alternative to the Crown’s inference of sexual gratification, namely, that he was working on a book project “Female Flashers”, which was a study of the skirt and how women wore the latest skirts, and what, if anything, they revealed to the public. He challenged the magistrate’s rejection of his evidence that the filming was undertaken as legitimate research in regard to a book he was writing. His submissions included the following:

The primary judge upheld the conviction. Her Honour delivered ex tempore reasons following the conclusion of oral submissions. The primary judge summarised the elements of the offence and then said:

Her Honour then summarised the video evidence stating:

Her Honour then summarised Mr Hedderman’s evidence that he could see that the pen-camera was up the woman’s skirt. Her Honour said:

It is clear from the video that, as Mr Toth submitted, the pen-camera was at all times outside the skirt. It took images of the woman’s legs and briefly her underwear that were under the skirt, but it is clear from the video that the camera was not itself under the skirt. Counsel for the DPP submitted that her Honour’s relevant finding was that it was the image that was under the woman’s skirt. But in my view her Honour’s finding that Mr Hedderman’s evidence was supported by her observation of what she saw on the video was an acceptance of Mr Hedderman’s evidence. Further, her Honour (at judgment p 8) made an express finding that the pen-camera was under the skirt for a very short period of time. Counsel for the DPP accepted that the footage from the pen-camera showed that at all times the outside of the woman’s skirt could be seen.

The primary judge then referred to what was said between Mr Hedderman and Mr Toth in which Mr Toth, when asked what he was doing, replied that he was doing nothing. Her Honour noted that Mr Toth’s evidence was that he was doing research for a book on morality and women’s fashions and things of that nature, but that is not what he told Mr Hedderman when he was apprehended. Her Honour then added:

Her Honour found that Mr Toth did film the covered private parts of a person who was walking up the stairs. She did not address Mr Toth’s submission that he did not intentionally film those private parts. Given her Honour’s finding that the pen-camera was up the woman’s skirt, the basis for Mr Toth’s contrary submission fell away.

As shown in the above transcript reference, the primary judge found that Mr Toth lied when he denied to Mr Hedderman that he was filming up the woman’s skirt (p 3). Her Honour drew that conclusion from the video evidence and what was said to be his admissions, although no specific admission was identified. Her Honour also found that Mr Toth lied when he responded to Mr Hedderman’s question “What are you doing?” by saying he was doing nothing. In submissions, her Honour accurately characterised the Crown case as being that the lies were evidence of consciousness of guilt. In her reasons for judgment the primary judge took into account Mr Toth’s denials that he was filming, that the camera was on and that he was doing anything at all, in finding that the filming was done for the purpose of sexual gratification (pp 4 and 8). Her Honour found that the woman had not consented to the filming of her covered private parts as she was walking up the stairs. She rejected Mr Toth’s submission that there was implied consent and described that submission as “absolute and errant nonsense”. She noted that there was no evidence that Mr Toth ever believed the woman was consenting to being filmed and clearly rejected any such view.

On the question of whether a reasonable person would reasonably expect that the person’s private parts could not be filmed, the primary judge said as follows:

Some words are clearly missing from the last paragraph quoted above. A recording of the proceedings in the District Court, including the primary judge’s reasons, was tendered. The words missing from the end of the last quoted paragraph were “… is something that a reasonable person would expect”.

Finally, the primary judge concluded that the filming was done for the purposes of sexual gratification. In reaching that conclusion her Honour took into account that the filming was surreptitious, Mr Toth’s denial to Mr Hedderman that he was filming, and, that the pen-camera had been under the woman’s skirt. Her Honour also was not satisfied that Mr Toth needed to film in order to do research for the book. Her Honour said:

The grounds of review raised by Mr Toth in his summons were as follows:

Mr Toth also submitted that the primary judge used statements he made in response to questioning from the primary judge to ground findings adverse to him, although those statements were not evidence.

At the beginning of Mr Toth’s submissions before the primary judge, Mr Toth, in response to a question from the primary judge, accepted that he filmed the relevant video footage. Mr Toth had submitted in writing that the Crown had not proven that he filmed the private parts deliberately or intentionally. The primary judge, in referring to that part of Mr Toth’s written submission, asked the following:

Although, in her reasons for judgment, the primary judge said that she made findings based on the evidence before the Local Court (judgment p 2), her Honour’s reasons included (p 8) that:

As noted above, the DPP accepted that the video evidence did not show that the filming was under the skirt, in the sense that the camera was held under the skirt. The primary judge’s finding that the camera was held under the skirt was erroneous, but it was not, merely on that account, a jurisdictional error.

Mr Toth did not agree that it was the skirt’s fault that the camera was underneath the skirt. He did not agree that the camera was underneath the skirt. The primary judge used what was wrongly said to be an admission made by Mr Toth in the course of his submissions, but which was not in evidence, as a ground for refusing the appeal.

The primary judge then moved to Mr Toth’s submission that there was an implied consent by the woman in question to having been filmed. Mr Toth’s submissions in relation to implied consent overlapped with his submissions concerning whether a reasonable person would reasonably expect that his or her private parts could not be filmed. In relation to his submission concerning implied consent there was the following exchange:

The primary judge asked what were the circumstances that she should take into account when considering whether the woman could be taken “to have consented to you walking behind her with a pen-camera up her skirt?”. Obviously if those were the facts there could be no consent, whether actual or implied. Mr Toth’s submission, which the DPP accepts is correct, and is in accordance with the magistrate’s finding, is that the pen-camera was not “up her skirt”.

There were some pages of questioning in relation to the issue of implied consent in which Mr Toth sought to say that because the woman in question was in public she impliedly consented to being filmed or photographed from any angle available to any member of the public with a camera. The primary judge’s questioning of Mr Toth on this subject was robust, but the merits of this submission were so exiguous as to invite the scornful observations that the primary judge made.

In his submissions before the primary judge Mr Toth accepted that if the camera was under the woman’s skirt then there would have to be a very strong inference that it was done for sexual gratification. There was the following exchange:

Mr Toth then submitted that the magistrate had not accepted Mr Hedderman’s version of events. He then submitted:

The following exchange then occurred:

The primary judge’s questioning of Mr Toth amounted to a cross-examination, and an unfair cross-examination at that (see paras [73]-[76] below). It did not address the question of whether, on the evidence adduced in the Local Court and the further evidence tendered in the District Court, Mr Toth was guilty of the offence charged. As set out at [37] above, in her reasons for judgment (p 8) the primary judge made findings adverse to Mr Toth on the basis of this exchange.

Further cross-examination followed:

Later, Mr Toth attempted, without success, to explain his submission that the Crown had not established that the filming was done in circumstances in which a reasonable person would reasonably expect his or her private parts “could not” be filmed. His submission in substance was that this element of the offence was directed to what a reasonable person would reasonably expect could be done as a matter of physical possibility. Whether or not that is the correct construction of s 91L(1) need not be decided. Whether the argument was correct or not it needed to be first understood and then addressed. Regrettably, the transcript and the primary judge’s reasons for judgment indicate that this did not happen. The following exchanges occurred:

What Mr Toth was attempting to do by reference to the reasons of Viney LCM was to draw to the primary judge’s attention to Viney LCM’s finding that:

The submission Mr Toth was seeking to make was that a reasonable person in the woman’s position would not reasonably expect that her private parts could not be filmed as a matter of physical possibility. He repeatedly sought to draw to the primary judge’s attention that the statute says “could not be filmed”, not “would not be filmed”. His submission was that whether reasonable people would think that was appropriate was not the statutory test.

Eventually, Mr Toth was able to draw the primary judge’s attention to the passage from Viney LCM’s reasons referred to above. Mr Toth’s submissions on this subject concluded as follows:

The primary judge dealt with this issue in her reasons for judgment that are set out at [35] above. As noted at [36] the primary judge’s transcribed reasons omit words set out at [36].

It may be that there is a good reason to construe the words “could not” as meaning “would not”. The primary judge did not provide any reason for so construing the section. An error in construing the section would not by itself amount to jurisdictional error. But reading the transcript as a whole with the reasons for judgment it appears that the primary judge simply did not address the argument that Mr Toth sought to raise. That in itself can be jurisdictional error.

Mr Toth’s complaints can be grouped into four categories, any of which, if made out, would constitute jurisdictional error. They are:

In Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 (“Concrete”) the High Court held that where a complaint is made to an intermediate appellate court of apprehended (or actual) bias on the part of the primary judge, along with other discrete grounds of appeal, the issue of bias should be dealt with first because, if established, it would strike at the validity of the trial and result in an order for a retrial (per Gummow ACJ at [2]; [117] per Kirby and Crennan JJ; cp Callinan J at [172]). In Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 (“Nguyen”) Basten JA observed (at [9]) that by extension the same must be true of other alleged grounds of denial of procedural fairness which, if established, would affect the validity of the trial and require a retrial.

In Goodwin v Commissioner of Police [2012] NSWCA 379 Basten JA said (at [17]) that the above comment in Concrete should be understood in the context in which it arose. In Concrete, if the ground of apprehended bias had been made out, there would have had to be a new trial, whereas if the other grounds of appeal were made out, the appellant would be entitled to substantive relief. In the present case, where relief is sought by way of judicial review on the grounds of jurisdictional error, the result of any of the grounds of review being made out would be the quashing of the decision below and the remittal of the matter to the District Court for the proceeding to be determined in accordance with law. In the present case I do not think it is necessary to determine the allegation of apprehended bias.

The issues of apparent bias and procedural unfairness by excessive judicial intervention are distinct. The grounds may overlap, but need not necessarily do so (RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3 at [11] per Gaudron ACJ, Gummow, Kirby and Hayne JJ; Nguyen at [35]-[36] per Basten JA; at [228] and [230] per Ward JA).

Many of the cases concerning excessive judicial intervention were discussed by this Court in Nguyen by Basten JA at [15]-[20] and by Ward JA at [162]-[172]. Whether judicial intervention gives rise to procedural unfairness or an apprehension that there was not a fair trial depends not only on the extent and manner of a judge’s intervention, but the nature of the trial and the circumstances in which the intervention occurs. Excessive questioning by a judge of a witness in a criminal trial before a jury (e.g. R v Esposito (1998) 45 NSWLR 442) will be considered differently from the questioning of a witness by a judge in a civil trial by a judge alone (as in Nguyen) and interventions before the case has been developed may be considered differently from close questioning of an advocate (or a self-represented party) in final submissions. In Galea v Galea (1990) 19 NSWLR 263 Kirby ACJ said at 281-282, in a passage quoted by Ward JA in Nguyen at [164]:

The present case was an appeal to be determined on the papers together with the additional document tendered on the appeal. Mr Toth handed up detailed written submissions. The primary judge was entitled to clarify and also to test closely Mr Toth’s submissions. She was entitled to express her scepticism. Nonetheless, as Kirby ACJ said in Galea v Galea (at 278):

In Jones v National Coal Board [1957] 2 QB 55 Denning LJ said (at 63-64):

R v Clewer concerned a judge’s interruption of counsel for the defence in counsel’s address to the jury in a criminal trial. Although different from the present circumstances, some of the observations of the Court of Criminal Appeal (Goddard LCJ, Byrne and Gerrard JJ) are apposite to the present case. The Court said (at 39-40):

In a trial or an appeal before a judge alone it is no less important that the accused or the appellant not be left with a sense of injustice on the ground that his or her case has not been able to be fairly put to the judge and fairly understood.

I have set out some, but by no means all, of the judge’s interventions above. In Nguyen Basten JA referred to observations of Lord Brown in Michel v The Queen [2009] UKPC 41; [2010] 1 WLR 879 at [31] and [34] in which his Lordship emphasised the importance of a judge’s holding the balance between the contesting parties. Basten JA cited with approval Lord Brown’s observation that:

Basten JA went on to say:

That is not to say that every departure from the standard suggested in Michel v The Queen would result in the order of a new trial. In Galea v Galea the interventions and hostility shown to a party did not lead to a finding of procedural unfairness.

Mr Toth complained that the primary judge interrupted his submissions 71 times in the space of less than one hour. He submitted that while some of the interruptions were neutral, many were not. He said that the number of interruptions caused him to lose the thread of his argument. He referred to five occasions in which the transcript records his saying “I’m a little bit lost your Honour”, or “I’m a little bit shaky actually, your Honour”, or “I’m getting all flustered here, your Honour”, or statements to similar effect.

Some of the judge’s questioning of Mr Toth went beyond the primary judge’s attempting to understand his submission or seeking to demonstrate weaknesses in it that he could address. As noted above much of the judge’s questioning amounted to cross-examination that might be expected from a prosecutor if Mr Toth were giving evidence. He was not. Nonetheless, admissions obtained were used against Mr Toth by the primary judge in her reasons for judgment.

The transcript excerpt (quoted at [40]) shows that the primary judge characterised Mr Toth’s submission as if he were saying that it was the skirt’s fault that it flicked up. Mr Toth submits that he never intimated any such thing and the primary judge was making it sound as if he were blaming the skirt for his predicament.

In response to a submission by Mr Toth that his purpose in filming was for the purposes of a book he was writing and that he was not filming for the purposes of sexual gratification, the primary judge cross-examined Mr Toth (transcript excerpt quoted above at [49]) in a way that prevented Mr Toth from putting his submission, and then cross-examined him on matters that were not the subject of the charge. When pressed to say why he took the photographs, Mr Toth said, that to nail it down in a phrase, it was to capture women’s behaviour in public. The primary judge asked “Why would you call that research if you’ve already formed a view on that? Why did you need to take another photograph?”. This was a non sequitur. Mr Toth replied “Because different women will behave differently” and that led to the primary judge asking “So you do this a lot, do you?”. Whether Mr Toth did it a lot or not was irrelevant. That led her Honour to ask “Are you saying you did it with the intention of putting a picture of her genitalia in your book, is that what you’re telling me?”

Mr Toth rightly complains that this was not a neutral intervention. There had been an earlier exchange:

This was wrong. “Private parts” is a defined expression that includes a person’s genital area or anal area, whether bare or covered by underwear (see s 91I, set out at [3] above). Mr Toth was not charged with filming a woman’s genitals and it was unfair for the primary judge to ask whether he was saying that he filmed with the intention of putting a picture of her genitalia in his book.

The further questions of Mr Toth as to whether he was going to put the photograph in his book appear to have been motivated by the issue as to whether or not the filming was done for the purposes of the sexual gratification of another person. In her reasons for judgment (p 7) the primary judge said that she did not rule out that possibility. It was no part of the judge’s function to assume the role of prosecutor with a view to establishing an alternative element of the offence. Nor was there any justification for the primary judge’s saying that it was a yes or no question and that either he intended to put the photograph in the book or he did not. Mr Toth answered that he did not know. He was then cut off by the primary judge’s providing an answer to her own question that he did not know whether it was “going to turn out [alright]”. Her Honour appears to have attempted to put in Mr Toth’s mouth words that he did not know whether it was going to turn out alright in the sense that he did not know whether the photograph would show the woman’s genitals. Her concluding comment “Right I see okay and that’s your position is it?” was said with a note of scorn.

I conclude that the questioning of Mr Toth did involve a denial of procedural fairness, and on that ground alone the orders should be quashed.

For the reasons above, it is not necessary to deal with this ground.

It is also not necessary to deal with this ground. But because the approach of the primary judge involved a serious misconception as to the nature of the appeal, it is desirable to address it.

Under s 18(1) of the Crimes (Appeal and Review) Act the appeal against conviction was to be by way of rehearing on the basis of evidence given in the Local Court proceeding, except insofar as fresh evidence was given by leave pursuant to s 18(2), or a person was directed to attend and give evidence in person pursuant to s 19. No such direction was given under s 19. Accordingly, except to the limited extent that additional evidence was tendered, namely through the tender of Mr Toth’s book, the appeal to the District Court was to be determined having regard to the evidence given in the Local Court, including the video. Because the rehearing in the District Court involved a rehearing on the basis of the transcript of evidence in the Local Court, the primary judge was required to observe the “natural limitations” of an appellate court in conducting a rehearing on the record, including the advantage of the magistrate in assessing a witness’ credibility (Charara v The Queen [2006] NSWCCA 244; (2006) 164 A Crim R 39 at [19]; McKellar v Director of Public Prosecutions (NSW) [2011] NSWCA 91 at [8]; Dyason v Butterworth [2015] NSWCA 52 at [26] and [27]).

In Dyason v Butterworth McColl JA said:

On the hearing of the appeal in the District Court neither the Crown nor the primary judge raised any issue about Mr Toth’s relying on additional grounds that had not been relied upon in the Local Court. In this Court counsel for the DPP accepted that it was open to Mr Toth to do so. It is unnecessary to consider this question further.

The point of present significance is that the primary judge did not address the question of whether the magistrate had misused her advantage as the trial judge in not accepting the evidence of Mr Hedderman and, at least by inference, accepting Mr Toth’s evidence that at all times his camera was below and behind, but not under, the woman’s skirt. The primary judge’s cross-examination of Mr Toth referred to earlier in these reasons was not only a denial of procedural fairness, it involved an assessment of Mr Toth’s credibility based not on the evidence that he gave, nor, indeed, on his submissions, but on his responses to the primary judge’s questions. This was not only irregular, it had no regard to the nature of the appeal with which the primary judge was dealing and the limits on the District Court’s functions in determining the appeal. This amounted to jurisdictional error.

As noted above, the appeal to the District Court proceeded on the basis that it was open to Mr Toth to rely upon all of the grounds upon which he did rely in asserting that he had not been proven to be guilty of the offence with which he was charged. Mr Toth complained that the primary judge failed to address substantial answers he proffered to the Crown’s case. It is unnecessary to deal with all of Mr Toth’s complaints in this respect. In at least two respects his complaint is made good. These have been identified earlier in these reasons.

The primary judge did not address Mr Toth’s submission that the Crown had not established that his filming of the woman’s private parts was deliberate or intentional. This submission raised the question of what was the necessary mens rea requirement for the commission of an offence under s 91L. No argument was advanced by the Crown on the question. There was, for example, no argument as to whether the Crown needed to establish more than that the act of filming was done deliberately, but also needed to establish that Mr Toth intended thereby to film the woman’s private parts. There was no argument as to whether recklessness would be sufficient. The issue was simply not addressed. Mr Toth’s submission assumed that the Crown needed to establish that he deliberately filmed the woman’s private parts. That issue was raised for the primary judge’s determination, but was not addressed.

Nor did the primary judge address Mr Toth’s submission that a reasonable person in the position of the woman in question would not reasonably have expected that her private parts could not be filmed. The primary judge, rather, proceeded on the basis that that was not the relevant question, but did not address why it was not the relevant question.

Mr Toth made a third complaint that the primary judge did not address his unchallenged evidence that he had written a number of books on public exhibitionism and was working on his upskirting book, that he charged money for the books that he wrote and was paid for them and had university qualifications that qualified him to write on such subjects and that his books indicated intellectual interest in public exhibitionism as opposed to a prurient interest in the subject. He submitted that, as this evidence was unchallenged, the Crown could not establish beyond reasonable doubt that the filming had been made for the purposes of sexual gratification.

But Mr Toth’s evidence was challenged to a degree. The cross-examination of Mr Toth in the Local Court in substance challenged his assertion that his reason for the filming was due to his writing of the book. It was put to him, and he agreed, that he did not tell the police that he was filming for the purposes of a book he was writing. The magistrate considered that the photos in the documents tendered in the Local Court, including an abridged version of the book, had not been taken in circumstances similar to the present case and this suggested that the photo was in an entirely different category to photos to be expected to be used in the book. The primary judge did not refer to this finding. Indeed, the primary judge did not refer to any of the findings of the magistrate, this being an indication that she considered that the appeal was to be treated as an appeal de novo. But the primary judge did address Mr Toth’s claim that he was taking the photo for the purpose of doing research. The primary judge said (see at [37] above) that Mr Toth was unable to explain why he needed to film the woman in question, having already formed an opinion that young women wear short skirts and sometimes behave in different ways when their underwear can be seen when they are walking upstairs. This rejection of Mr Toth’s evidence and submissions that he was filming for the purposes of a book he was writing was, in my view, inadequate to deal with the submission. It was not, on that account, jurisdictional error. Nonetheless, the failure to address the other two submissions did amount to jurisdictional error.

For these reasons Mr Toth has established that the decision of the primary judge should be set aside for jurisdictional error. I have made no finding of apprehended bias. Nonetheless, the finding that Mr Toth was denied procedural fairness by the primary judge means that the rehearing of the appeal should be before a different judge. Were the same judge to rehear the appeal then a reasonable bystander might reasonably apprehend that the judge might not bring an impartial mind to bear on the issues.

I propose the following orders:

BARRETT AJA: For the reasons stated by White JA, the decision of Syme DCJ cannot stand and Mr Toth’s appeal to the District Court must be heard and determined anew by a different judge. Orders should be made as White JA proposes.