Lobato v Director of Public Prosecutions (NSW)

1. [1]

   WARD P: I agree with Adamson JA.

2. [2]

   ADAMSON JA: The issue raised by this application is whether the District Court made a jurisdictional error or failed to exercise its jurisdiction, when it dismissed an appeal against the convictions of Jorge Lobato (the applicant) for two offences (sequences 2 and 3) of intimidation with intent to cause mental harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the Act).

3. [3]

   Sequences 2 and 3 relate to the same acts. The prosecution alleged that the applicant placed Ms W (a resident of the aged care facility) in Mr O’s room and dressed her in Mr O’s clothes. The prosecutor alleged that this conduct amounted to intimidation of Mr O (sequence 2) and of Ms W (sequence 3).

4. [4]

   By summons filed on 16 June 2025, the applicant seeks an order setting aside:

   1. (1)

      the dismissal by Blackmore ADCJ (the primary judge) of his appeal against his convictions ordered by Gilligan LCM (the magistrate) of sequences 2 and 3; and

   2. (2)

      the fine of $5,000 which was imposed by the primary judge with respect to sequences 2 and 3 (in lieu of the aggregate sentence imposed by the magistrate in respect of sequences 1-4).

5. [5]

   The orders sought in the summons as filed were subsequently refined by draft orders which were handed up at the commencement of the hearing. The Court ordered that the summons be treated as amended as if the proposed orders were substituted for the original orders sought.

6. [6]

   The Director of Public Prosecutions (NSW) (the respondent) is the first, and only active, respondent. The District Court of New South Wales, the second respondent, has filed a submitting appearance.

7. [7]

   The applicant can only obtain the relief he seeks in this Court if he establishes that the decisions involved jurisdictional error. No relief is available for an error of law on the face of the record (s 176 of the District Court Act 1973 (NSW)) unless it is jurisdictional. There is otherwise no right to challenge, or appeal from, a decision of the District Court on appeal from the Local Court, as in the present case.

8. [8]

   The applicant was charged with 9 offences in the Local Court, one of which (sequence 8) was subsequently withdrawn. Each of the offences was alleged to have been committed at an aged care facility in Eastern Sydney, where the applicant was employed as a registered nurse (RN). It was alleged that the victims of each offence was a resident of the nursing home who had dementia. Ms W suffered from vascular cognitive dementia, as a result of which her memory and speech were severely compromised. Mr O suffered from Alzheimer’s disease but he was both articulate and mobile at the time of the alleged offending. By reason of the mental state of the residents, none was called to give evidence. Both have since died.

9. [9]

   The applicant was found guilty by the magistrate of sequences 1-4 (all offences contrary to s 13(1) of the Act) and not guilty of sequences 5, 6, 7 and 9 (charges of common assault contrary to s 61 of the Crimes Act 1900 (NSW)). The magistrate imposed an aggregate sentence for sequences 1-4 of 8 months’ imprisonment.

10. [10]

    The applicant appealed as of right against his convictions and against the aggregate sentence to the District Court pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) (the CAR Act). Section 18(1) of the CAR Act provides that “[a]n appeal against conviction is to be by way of rehearing on the basis of the evidence given in the original Local Court proceedings” subject to qualifications which are not presently relevant. On 21 March 2025 the primary judge upheld the applicant’s appeal in respect of sequences 1 and 4 and dismissed the appeal in respect of sequences 2 and 3. His Honour imposed a fine of $5,000 in respect of each of sequences 2 and 3.

The offence provisions

1. [11]

   Section 13 of the Act relevantly provides:

2. [12]

   Section 7 of the Act relevantly defines “intimidation” as follows:

Background

1. [13]

   It is not necessary to canvass the evidence adduced at the hearing in the Local Court except in so far as it is germane to sequences 2 and 3, since the applicant was, either in that Court or in the District Court, found not guilty of the remaining charges.

2. [14]

   In order to rely on evidence for a tendency purpose, as provided for in s 97 of the Evidence Act 1995 (NSW), the prosecution served a tendency notice dated 13 April 2023 pursuant to s 97(1)(a). The notice identified the alleged tendency as follows:

3. [15]

   The tendency notice included sequences 2 and 3 (described as event 2) and alleged:

4. [16]

   Sequence 4 (which alleged that the applicant had done a similar thing to Ms G) was described as “Event 3” in the tendency notice. The tendency notice also included the following, described compendiously as “Event 9”:

5. [17]

   The tendency notice stated that the substance of the evidence to be relied on for Event 9 was contained in the statements of Mr Bhattari and Ms Luitel and photographs and videos obtained from the applicant’s phone (as contained in the statement of Senior Constable Edminstone). The conduct described in the last sentence of the extract was referred to in the evidence as the “toy dog incident”.

6. [18]

   As there is no allegation of violence with respect to sequences 2 and 3 and as sequence 1 alleged that the applicant added salt and chilli to the food of one of the residents, the only sequence that is particularly relevant to sequences 2 and 3 is sequence 4. Although the applicant was ultimately acquitted by the primary judge of sequence 4 (having been found guilty by the magistrate of that sequence), it was still open to the primary judge to use that evidence for a tendency purpose, notwithstanding that sequence 4 had not been proved beyond reasonable doubt: Director of Public Prosecutions (Vic) v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644 at [19], [24] and [31].

7. [19]

   The principal evidence before the magistrate of sequences 2 and 3 was as follows.

8. [20]

   Manisha K C was employed as an assistant in nursing (AIN) at the aged care facility. On every shift there was a RN and at least two AINs.

9. [21]

   She described Ms W, who had dementia, as having a tendency to “wander in[to] other residents’ room[s]” and “collect stuff”. Ms W was in room 4 and Mr O was in room 17. Both rooms were on the lower ground floor.

10. [22]

    Ms K C observed Ms W in Mr O’s room “a few times a week” during the period from July 2020 to March 2021. Every time Ms K C observed Ms W in that room, the applicant was also present. In order to get into Mr O’s room, the entrant would need to get through the door as well as negotiate the “gate” which was also outside the door.

11. [23]

    Ms K C was in another location, such as the dining room or the nurses’ station, when she heard Ms W screaming. She went to see what was happening and observed the applicant dressing Ms W in Mr O’s clothes in Mr O’s room. On at least one occasion, Ms K C observed the applicant taking Mr O’s clothes out of his cupboard and dressing Ms W in them. Ms K C observed the applicant “[m]ake her hands out and then wrap [the clothes] around her”. On another occasion, she saw Ms W already wearing clothes that she recognised as Mr O’s clothes. Ms K C said that the clothing which the applicant put on Ms W was usually Mr O’s coat.

12. [24]

    On other occasions, Ms K C observed the applicant shepherding Ms W into Mr O’s room by “push[ing] her from the back or tell[ing] her to come with [him] [and] [s]ometimes[,] holding her hand as well.”. Ms K C said that Ms W would “scream” and yell loudly but not in discernible words.

13. [25]

    When asked what Ms W’s reaction was to being moved into Mr O’s room, Ms K C said:

14. [26]

    Ms K C said that Mr O could not hear the screaming from the dining hall but, from his position in the dining hall, he could see into his room. When Mr O returned to his room and found Ms W there, wearing his coat, he would yell at her, “[y]ou bitch. Get out of my room.”. By that time, the applicant was no longer in Mr O’s room. Ms K C said that the applicant would dress Ms W in Mr O’s coat when everyone else was in the dining hall.

15. [27]

    Ms K C did not observe any other interaction between the applicant and Ms W other than when he was leading her to Mr O’s room and dressing her in Mr O’s coat.

16. [28]

    Ms K C did not report her observations at the time. She explained that the applicant’s conduct had resulted in her decision to stop accepting shifts on the lower ground floor. She also decided not to create an issue by reporting it. However, in about November 2021, she was talking with a colleague, Laxmi Shrestha, about what was happening on the lower ground floor and they decided to “call Cindy [the owner of the nursing home] and whisper about what was going on”. They were directed to talk to the Director of Nursing, Sue Thacker.

17. [29]

    Ms K C was cross-examined about her failure to report the applicant’s alleged conduct in accordance with the document headed, “Compulsory Reporting in Residential Aged Care Facilities” which she had signed on 28 February 2020 when she started working at the aged care facility. It provided that staff members were to report any abuse of residents “immediately”. Ms K C accepted that she had neither reported nor recorded what had happened until November 2021.

18. [30]

    Ms K C explained why she eventually reported it in the following exchange:

19. [31]

    Ms K C also explained that she stopped speaking with the applicant from about August 2021 because of his actions towards the residents.

20. [32]

    Ms Lama started working as an AIN at the aged care facility in March 2019. When she became a permanent employee she worked full time, five days a week. She and the applicant both worked on the Thursday afternoon shift between 12.45 and 9.15pm. The morning shift started at 6.30am and finished at 3pm.

21. [33]

    Ms Lama described Ms W as “a wanderer”. On two or three occasions, she observed the applicant drag or pull Ms W into Mr O’s room and leave her in there and lock the door. Ms W would scream as he was doing this and Mr O would scream when he returned to his room and found Ms W inside. Ms Lama was outside the room and therefore could not see what was happening inside the room.

22. [34]

    When she heard Ms W screaming from inside Mr O’s room, Ms Lama would go in and get Ms W. By this time, the applicant would no longer be inside the room. When she saw the applicant outside the room on these occasions, she observed the applicant laughing. When asked to describe what state Ms Lama found Ms W in when Ms Lama went in to help her, Ms Lama said, “just panic, like, nervous”. She observed Ms W trying to get out of the room.

23. [35]

    Ms Lama observed that, when Mr O returned to his room, he would hold his walking stick and try to hit Ms W and say, “[j]ust go out, go.”.

24. [36]

    Ms Lama agreed that Mr O had a swipe card which would enable him to leave the lower ground floor. He also had a piano in his room and would teach students. Ms Lama agreed that, although Mr O could talk (unlike some other patients whose dementia was worse than his), he did not complain to her about finding Ms W in his room.

25. [37]

    When asked whether she said anything to the applicant on any of these occasions, Ms Lama said:

26. [38]

    Ms Lama said subsequently that she was scared to report it because she was worried that the applicant would complain about her and that no one would support her.

27. [39]

    Ms Lama said that she spoke to Ms Thacker because she contacted her and wanted to ask her about what had happened. She said that she did not speak to her colleagues about the applicant’s conduct.

28. [40]

    In cross-examination, Ms Lama agreed that she had signed the document regarding her obligation to report any incident concerning a resident immediately.

29. [41]

    Ms Luitel worked as an AIN at the aged care facility in 2021 and continued to work there at the time of the hearing (April 2023). For a period of about three months, she did the Friday afternoon shift with the applicant on the lower ground floor. Ms Luitel would start at 12.45pm and work until 9.15pm or start at 3pm and work until 9.30pm. Evidence of their rostered shifts indicated that they worked a total of seven full shifts together (on 23 and 30 April 2021, 10 and 18 June 2021 and 2, 16 and 23 July 2021) and five shifts where there was a one hour overlap between their shifts (on 27 February 2021, 11 and 13 March 2021, 1 May and 5 June 2021). There was also a one hour overlap on 11 April 2021 but they were working on different wards.

30. [42]

    Ms Luitel recalled that Ms W had dementia and “used to walk pretty well”. She would “wander around the hallway … getting into rooms”. She mumbled and could not say more than a few words, such as “[g]et away from me”. Ms W picked up items belonging to other residents such as books or creams. She lacked the co-ordination to dress herself. Nor was she capable of opening a cupboard to remove clothing.

31. [43]

    Ms Luitel recalled an occasion in 2021 when the applicant grabbed Ms W’s arm and took her into Mr O’s room and dressed her in some of his clothes. Ms Luitel also saw Mr O returning to the room “and yelling at [Ms W] to get out of his room.” Ms W would then run from Mr O’s room, which is when Ms Luitel saw the applicant “laughing about it. Like smiling about it”.

32. [44]

    Mr O’s room not only had a door but also had a “white barrier on the door …[j]ust to block anyone going inside”. Ms Luitel said that “it usually remains closed so that [Mr O] can open it and we can open it”. She said that the applicant had to open the barrier because Ms W was unable to do so and none of the other residents could do so.

33. [45]

    Ms Luitel confirmed:

34. [46]

    Although Ms Luitel could not recall what Ms W was wearing when Ms W entered into Mr O’s room, she said that she was not wearing Mr O’s clothes because she was no longer able to dress herself. Ms Luitel confirmed that it was the responsibility of the AINs to dress residents, such as Ms W, who were unable to dress themselves. Ms Luitel saw Mr O entering the room and yelling at Ms W to get out of his room.

35. [47]

    Ms Luitel recalled that the applicant was smiling when he came out of the room with Ms W (who was dressed in Mr O’s clothes) and took her to the dining room.

36. [48]

    Ms Luitel explained that Ms W “doesn’t know where she is going, so we need to … direct her to the dining room”. Ms Luitel described Ms W’s demeanour as “anxious” when Mr O “yelled at her” and added that Ms W “tries to run when she’s anxious” but that the applicant restrained her by “holding her so she couldn’t run”.

37. [49]

    After refreshing her memory by reference to her police statement dated 23 September 2021, Ms Luitel confirmed that she witnessed this incident in 2021.

38. [50]

    Ms Shrestha started working as an AIN at the aged care facility in early 2021. She mostly worked on the lower ground floor where the applicant was the RN. They tended to work together on Thursday and Friday.

39. [51]

    On one occasion she saw the applicant pinching Ms W on the back of her arms as he was walking behind her. Following that incident, she spoke with Ms K C and the two of them went to report the applicant’s conduct. She explained that she had not reported the incident immediately because she was scared that the applicant: “will just make up the things and complain in the management, so they will not give you shift anymore. So I don’t want to lose the job”.

40. [52]

    Mr Bhattari had worked with the applicant on the lower ground floor of the aged care facility since 2019. He and the applicant’s shifts overlapped on Thursday, Friday and Saturdays.

41. [53]

    Mr Bhattari recalled the applicant either showing him or sending him photographs of a resident “wearing some kind of … clothing … not in [the] correct way”. Mr Bhattari identified the resident as Ms W and said:

42. [54]

    Mr Bhattari said that when the applicant showed him the photo, the applicant said, “if relatives, or family member, or management saw it, it’s very bad for us, to be careful about that”. Mr Bhattari also gave evidence that the applicant said, “this look funny” and “careful if we, like, visitor or some, you know, family member saw this one, you guys in trouble”. This evidence was corroborated by the applicant’s own evidence of the circumstances in which he showed a photograph to Mr Bhattari (see below). However, when asked whether the applicant said anything further to him when he was showing him a photograph of a resident (Ms W) in different clothes, Mr Bhattari said that the applicant did not say anything else.

43. [55]

    This led to the prosecutor making an application for leave under s 38 of the Evidence Act for leave to cross-examine Mr Bhattari on the basis of Mr Bhattari’s prior statement that the applicant had taken the photos “just to make fun” and had actually sent him the photographs (as opposed to showing him the photographs on his phone, which was Mr Bhattari’s oral evidence). The prosecutor told the magistrate that he wanted to explore which photographs Mr Bhattari was shown. He also relied on the description of the reason the photographs had been taken (“just to make fun”) as supporting the mental element for the offences charged. The applicant objected to leave being granted and the magistrate refused the application.

44. [56]

    Mr Bhattari described Ms W as “unpredictable” and said that sometimes she would scream for no apparent reason or call out, saying something like, “my mother is coming, I have to go to [the] university … I have to go to [the] national library”. He said that sometimes she would pick up an item of clothing, a photo frame or flower vase and carry it from one place to another. He also said that sometimes she would be settled but that at other times she would be agitated.

45. [57]

    Mr Bhattari estimated the height of the gate at the door to Mr O’s room to be approximately one metre. According to Mr Bhattari, it had a little latch that generally only Mr O or the hospital staff could operate. He said that, generally, Mr O closed the curtains of the window in his room when he went to the dining room and that, in that event, Mr O would not have been able to see into his room from the dining room. He confirmed that this occurred “most of the time”.

46. [58]

    The prosecution tendered, for a tendency purpose:

    1. (1)

       images (marked Exhibit P4) which had been deleted by the applicant from his mobile device but which were recovered on forensic analysis, including three images which depicted Ms W dressed in Mr O’s coat and scarf and wearing his hat, standing in his room with Mr O depicted approaching her in the room; and

    2. (2)

       video footage, including video 2, which depicted Mr O lying on his back on the carpet in a corridor in the facility, making attempts to get up to a standing position.

47. [59]

    A photo of the screen of the applicant’s phone taken by Senior Constable Edminstone indicated that the three photographs taken in Mr O’s room were taken on 30 April 2021. The significance of this date (which would appear to amount to a business record within the meaning of s 69 of the Evidence Act) and the fact that it corresponded with one of the full shifts which Ms Luitel worked with the applicant was not explored in the evidence. The prosecutor did not submit that the photograph corresponded with the occasion which was witnessed by Ms Luitel. Rather, the prosecutor ultimately submitted that the applicant’s taking of the photographs (together with his admission and Mr Bhattari’s evidence) showed that the applicant had a tendency to harass residents with the intention of causing them to fear mental harm (fear, anxiety and distress) for his own amusement, in circumstances where he appreciated that it was not consistent with his professional duties and would harm his career if either management or the families of residents learned of it. This submission was accepted by the primary judge.

48. [60]

    This evidence is potentially relevant for a tendency purpose and, therefore, will be addressed although the primary judge found the applicant not guilty of sequence 4.

49. [61]

    Ms K C said that, on two occasions, she saw the applicant either holding Ms G’s hand or pushing Ms G into Mr O’s room when Mr O was in the dining hall. Ms G was a resident on the lower ground floor. Ms K C observed that while in the room, the applicant would dress Ms G in Mr O’s coat. After he had dressed Ms G in Mr O’s coat, Ms K C saw the applicant going into the dining hall to help. Mr O’s reaction was the same as with Ms W: he would leave the dining room and return to his room and would yell at Ms G.

50. [62]

    Ms K C was Ms G’s carer at the time and would go to the room to see what was happening. She recalled telling Mr O that he should return to the dining hall and that she would handle Ms G and his coat.

51. [63]

    Ms Luitel gave evidence that Mr D, a resident, had a toy dog which he used to carry around with him. On one occasion, she saw Mr D in the dining room with his toy dog. Ms Luitel said that Mr Bhattari was also present on this occasion. The applicant “snatched” the toy dog away from Mr D and told him that he was going to punch the dog. According to Ms Luitel, the applicant then punched the toy dog a number of times with a closed fist. Mr D, who could not communicate well said, “[g]ive me back, give me back”. Ms Luitel said that Mr D was “upset” and his face was “red”.

52. [64]

    Ms Luitel said that seeing the two incidents (relating to Ms W and to Mr D and his toy dog) made her feel “uncomfortable” which caused her to request to be moved to another floor. She later reported both incidents when she went with Ms K C to see Ms Thacker.

53. [65]

    Mr Bhattari gave evidence that he did not recall Mr D having a toy dog. Mr D’s daughter gave evidence that Mr D carried “many soft toys around with him” and agreed that they would be a comfort and were “quite dear to him”.

54. [66]

    The applicant also gave evidence, denying all sequences and called evidence of his good character. The applicant’s evidence is presently relevant only in so far as it was referred by the magistrate or the primary judge as supporting the prosecution case, since the primary judge rejected his denials of sequences 2 and 3. In these circumstances, I do not propose to summarise it, although references to it will be included, where necessary, in the consideration of the respective judgments of the magistrate and the primary judge.

55. [67]

    The applicant agreed that he had taken all the photos and videos that were on his phone. His written explanation as to why he had taken the photographs which were tendered as Exhibit P4 (which depicted Mr O and Ms W dressed in Mr O’s coat, hat and scarf in Mr O’s room), was as follows:

56. [68]

    The applicant also gave oral evidence of why he had taken the photographs. He said that Mr O’s blazer did not need to be buttoned up and maintained that it was not buttoned up in the photographs he had taken.

57. [69]

    The applicant agreed that he had showed one of the photographs on his mobile device to Mr Bhattari and that he had “alert[ed] him” by telling him, “If relatives or family members or management saw it it’s very bad for us, to be careful about that.” (Emphasis added.) This evidence was accepted by the primary judge as being corroborative of Mr Bhattari’s evidence.

58. [70]

    The applicant then said, when asked how taking photographs of a resident in another resident’s clothes was consistent with maintaining their dignity:

59. [71]

    The applicant’s explanation was plainly not accepted by the primary judge.

60. [72]

    The applicant denied the toy dog incident. He said:

The magistrate’s reasons

1. [73]

   The magistrate’s reasons with respect to her findings of guilt in respect of sequences 2-4 are as follows:

2. [74]

   The magistrate did not accept that the toy dog incident was capable of amounting to tendency evidence and therefore did not take it into account in reasoning to the applicant’s guilt of sequences 1-4.

The primary judge’s decision

1. [75]

   The primary judge’s dismissal of the applicant’s appeal against his convictions of sequences 2 and 3 is challenged in the present application. However, it is also necessary to address his Honour’s findings on the other sequences because of his Honour’s findings of credibility associated with particular witnesses.

2. [76]

   The primary judge set aside the conviction for sequence 1, in part because his Honour did not accept the evidence of Ms K C that the applicant put chilli in Mr O’s food, on the basis that it was uncorroborated. His Honour noted her evidence that there was no chilli kept at the aged care facility.

3. [77]

   The primary judge found Ms K C’s evidence that the applicant was in Mr O’s room with Ms W “a few times a week” to be “exaggerated” and unable to be accepted. His Honour also noted the inconsistency between Ms K C’s evidence that when she saw Ms W, she was already wearing Mr O’s clothes and her evidence that she saw the applicant take a coat out of Mr O’s cupboard and put it on Ms W. The primary judge observed that “those two statements cannot stand together”. His Honour noted the applicant’s admission that he was in Mr O’s room when Ms W was wearing his clothing but denied that he guided Ms W there with the intention of dressing her in his clothes.

4. [78]

   His Honour noted Ms K C’s evidence that Ms W would become agitated and scream as the applicant guided her into Mr O’s room.

5. [79]

   The primary judge also noted inconsistencies in Ms K C’s evidence with respect to sequence 4. His Honour also regarded it as significant that there had been a lengthy delay between Ms K C’s observations of the applicant’s conduct and her reporting of it and noted that the charges of assault (sequences 5-7 and 9) relied heavily on Ms K C’s evidence and were dismissed by the magistrate, in the face of the applicant’s “firm denials”.

6. [80]

   The primary judge took into account, in his rejection of Ms K C’s evidence, that she had failed to comply with the reporting requirements at the aged care facility. His Honour said:

7. [81]

   Unlike the magistrate (who found that Ms K C, as a young Nepalese immigrant, who was junior to the applicant, may have been scared to report allegations of misconduct), the primary judge did not accept that there was a reasonable explanation for Ms K C’s delay in reporting. His Honour found that Ms K C’s evidence “should not be accepted without corroboration”.

8. [82]

   The primary judge rejected Ms Lama’s evidence that the applicant dragged Ms W screaming into Mr O’s room on the ground that it was implausible. His Honour said:

9. [83]

   The primary judge did not accept the evidence of Ms Lama as to other matters and said that his Honour “put it aside”. The primary judge noted that, in finding the applicant guilty of sequences 2, 3 and 4, the magistrate did not rely on the evidence of Ms Lama. Rather, the magistrate relied on the evidence of Ms K C, Ms Luitel, Mr Bhattari and the tendency evidence.

10. [84]

    The primary judge accepted Ms Luitel’s evidence, which his Honour described as “coherent”, that:

    1. (1)

       Ms W was unable to dress herself; and

    2. (2)

       on one occasion she saw the applicant guide Ms W (who was wearing her usual clothes) into Mr O’s room; Mr O subsequently enter the room; and the applicant escort Ms W (who was, by that time, wearing Mr O’s clothes) out of the room as Mr O, who was angry, was telling her to “[g]et out”.

11. [85]

    Although the primary judge found that Ms Luitel, like Ms K C, had delayed in reporting her observations, his Honour found that Ms Luitel’s evidence and Ms K C’s evidence corroborated the other and the differences between their evidence “belie[d] the allegation … by the defence that the evidence was jointly concocted by the witnesses”.

12. [86]

    The primary judge accepted Ms Luitel’s evidence, which his Honour found was corroborated by other evidence, as follows:

13. [87]

    Of the toy dog incident, the primary judge said:

14. [88]

    The primary judge noted that the only relevant evidence given by Mr Bhattari related to the applicant showing him a photograph of Ms W wearing Mr O’s clothes. His Honour continued:

15. [89]

    As to the character evidence adduced by the applicant, the primary judge noted that “there was significant evidence of good character” and that his Honour had taken that “unchallenged evidence of good character into account in reaching [his] conclusions …”.

16. [90]

    The primary judge gave the following reasons for dismissing the applicant’s appeal against the findings of the magistrate in respect of sequences 2 and 3:

17. [91]

    After dismissing the appeal against sequences 2 and 3, the primary judge proceeded to address sequence 4. His Honour again referred to the deficiencies in Ms K C’s evidence and the fact that his Honour would not accept it unless corroborated. His Honour proceeded to address the prosecutor’s submission that Ms K C’s evidence was corroborated by the tendency evidence. The primary judge said:

18. [92]

    While there are some slight infelicities of expression in this passage in the reasons, I consider that, fairly read, his Honour found that the photographs of Ms W dressed in Mr O’s clothes constituted tendency evidence which corroborated the other evidence adduced with respect to sequences 2 and 3, but did not relevantly corroborate Ms K C’s evidence with respect to sequence 4 (which concerned a different resident, Ms G).

The grounds of appeal

1. [93]

   In his summons, the applicant elaborated on his grounds of appeal in a discursive way which combined their articulation with the submissions in support. The summons did not comply with r 59.4(c) of the Uniform Civil Procedure Rules 2005 (NSW), which requires the grounds on which the relief is sought to be stated “with specificity”. Nor was any attempt made to indicate the basis on which the errors alleged were jurisdictional errors.

2. [94]

   In substance, the applicant challenged various findings which he contended were “legally unreasonable” or a “denial of procedural fairness”. In these circumstances, it is convenient to address the findings challenged and, if any of the challenges are made out, the further question of whether the decision is affected by jurisdictional error can be addressed.

3. [95]

   The alleged errors are, in substance, as follows:

   1. (1)

      the primary judge’s view that Ms Luitel’s evidence with respect to sequences 2 and 3 was supported by the photographic evidence;

   2. (2)

      the primary judge’s acceptance of Ms Luitel’s evidence with respect to sequences 2 and 3;

   3. (3)

      the primary judge’s acceptance of Mr Bhattari’s evidence that the applicant showed him a photograph depicting Ms W in Mr O’s clothes, which the applicant appeared to find amusing;

   4. (4)

      the primary judge’s approach to the evidence of the applicant’s good character; and

   5. (5)

      the primary judge’s approach to the tendency evidence.

4. [96]

   Mr Robinson SC, who appeared on behalf of the applicant in the Local Court, the District Court, and, with Ms Hawkins, in this Court, also sought to challenge the finding that the applicant intended to cause mental harm to Ms W and Mr O (being the mental element of the offence under s 13 of the Act). He also sought to challenge the sentence (which will be addressed separately below). As no ground was raised in the summons relating to either of these matters, I do not propose to address them.

5. [97]

   Mr Robinson submitted that it was erroneous for the primary judge to regard the photographic evidence as supporting Ms Luitel’s evidence regarding sequences 2 and 3.

6. [98]

   He submitted that, as the photos found on the applicant’s phone had not been put to Ms Luitel, the finding was legally unreasonable and amounted to a denial of procedural fairness to the applicant since Ms Luitel was not shown the photographs on which the primary judge relied (which depicted Ms W in Mr O’s room, dressed in his clothes).

7. [99]

   I understood Mr Robinson also to submit that it was not open to the primary judge to accept Ms Luitel’s evidence of sequences 2 and 3 in circumstances where her evidence of the toy dog incident had not been accepted.

8. [100]

   There was no forensic need for the photographs from the applicant’s phone to be shown to Ms Luitel, there being no dispute as to what they depicted (Mr O in his own room and Ms W, dressed in Mr O’s coat, scarf and hat). Further, it is difficult to conceive of any admissible evidence, beyond identifying the scene or the persons depicted, which she could have given since it was a matter for the tribunal of fact to consider and determine what inferences ought be drawn from her evidence of what she saw outside Mr O’s room and the evidence of photographs that were taken inside the room.

9. [101]

   Further, there was no denial of procedural fairness to the applicant in the photographs not having been shown to Ms Luitel. The applicant had been on notice since at least the time of the service of the tendency notice, which was dated 13 April 2023, that the prosecution proposed to rely on the photographs in support of sequences 2 and 3. Secondly, the applicant was on notice that it was not suggested that the photographs actually depicted the charged conduct observed by Ms Luitel. Rather, the prosecutor made it clear that the photographs were being relied on as tendency evidence of the applicant’s tendency “[t]o harass elderly residents (80 years and older) in his care”.

10. [102]

    The prosecution case in support of sequences 2 and 3 was based on the following direct and circumstantial evidence:

    1. (1)

       Ms Luitel’s direct evidence that she had seen the applicant guide Ms W into Mr O’s room at a time when he was away in the dining room;

    2. (2)

       Ms Luitel’s direct evidence that she had subsequently seen Mr O enter his room and had seen the applicant escort Ms W, who was dressed in Mr O’s clothes out of the room, while Mr O was shouting at her to “get out”;

    3. (3)

       the evidence that Mr O was fond of food and tended to be first in line to be served in the dining room;

    4. (4)

       the undisputed circumstantial evidence that Mr O’s room was secured by a 1m high gate which could only be unlatched by Mr O or a member of staff (and, therefore, not by Ms W);

    5. (5)

       the undisputed evidence that Ms W was not capable of dressing herself;

    6. (6)

       the photographs on the applicant’s phone which showed Mr O and Ms W, dressed in Mr O’s coat, scarf and hat, in Mr O’s room;

    7. (7)

       Mr Bhattari’s evidence that the applicant showed him a photograph of Ms W in Mr O’s room, dressed in a strange way, in circumstances where the applicant appeared to be amused and evinced a consciousness that the photograph would get him into trouble if other staff members or residents’ families saw it (which was corroborated by the applicant);

    8. (8)

       the videos on the applicant’s phone depicted a tendency to harass residents; and

    9. (9)

       Ms K C’s evidence of sequences 2 and 3, which corroborated Ms Luitel’s evidence.

11. [103]

    Ms Luitel saw what happened before Ms W and the applicant entered Mr O’s room and saw and heard what happened after Mr O returned to his room. The inference which the prosecution sought to have the tribunal of fact draw was that it was the applicant who had dressed Ms W in Mr O’s clothes and that he had done so with the requisite criminal intention.

12. [104]

    The photographs (and Mr Bhattari’s evidence about the applicant’s attitude to the photograph he had shown him) indicated that the applicant had a tendency to harass residents, which made it more likely that he was guilty of sequences 2 and 3. Thus, they corroborated Ms Luitel’s evidence in support of those sequences. Ms Luitel’s evidence and the photographic evidence (to be used for the tendency purpose) were “strands in the cable” of the prosecution’s circumstantial case against the applicant on those sequences: see Shepherd v The Queen (1990) 170 CLR 573 at 579; [1990] HCA 56 (Dawson J) referring to the metaphor used in Wigmore on Evidence, vol 9 (Chadbourn rev 1981), par 2497, pp 412-414). Thus, Ms Luitel’s evidence, the photographic evidence and other evidence could be taken together to prove the Crown case beyond reasonable doubt.

13. [105]

    For the reasons given above, it was open to the primary judge to regard the photographs found on the applicant’s phone which depicted Ms W dressed in Mr O’s clothing in his room, together with Mr Bhattari’s evidence about the circumstances in which one of those photographs was disclosed to him by the applicant, as corroborative of Ms Luitel’s evidence of sequences 2 and 3. I do not discern any basis in the primary judge’s reasons to conclude that his Honour treated what is depicted in the three photographs as being the particular incident described by Ms Luitel. Rather, what was shown in the photograph was consistent with the tendency alleged by the prosecution and depicted substantially similar conduct to that which she described.

14. [106]

    Further, it was open to the primary judge to accept Ms Luitel’s evidence of sequences 2 and 3, notwithstanding that the magistrate had not accepted her evidence as to the toy dog incident as admissible for a tendency purpose. As set out above, the magistrate found that, whether or not the toy dog incident had occurred, it was not relevant for a tendency purpose. The primary judge noted that this finding was not challenged. Thus, neither the magistrate nor the primary judge needed to decide whether to accept Ms Luitel’s evidence of the toy dog incident.

15. [107]

    However, even had either the magistrate or the primary judge, or both, not accepted Ms Luitel’s evidence of the toy dog incident, it did not follow that they were unable to accept her evidence of sequences 2 and 3. A tribunal of fact is entitled to accept part of a witness’s evidence and not accept another part: Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 at 1201 (Lord Blackburn).

16. [108]

    Mr Robinson submitted that it was not open to the trial judge to accept Mr Bhattari’s evidence that the applicant showed him a photograph of Ms W “wearing some kind of … clothing … not in [the] correct way” and that the photograph was one of the photographs found on the applicant’s phone. He submitted that, as Mr Bhattari had not been shown the photographs in Exhibit P4, the inference was not available.

17. [109]

    Further, he submitted that there was no basis for the primary judge to infer that the photograph which the applicant had shown Mr Bhattari was the same photograph as in Exhibit P4 and that, in so far as the primary judge found that it was, this was erroneous.

18. [110]

    The prosecutor was not entitled to show Mr Bhattari the photographs that comprised Exhibit P4 and ask him whether the photograph he was shown by the applicant was one of those photographs. Such a question when asked in examination in chief would have been plainly objectionable on the basis that it was leading. The tribunal of fact was entitled to have regard to the photos and reason from them that they made it more likely that Ms Luitel’s evidence as to what she saw was true. In circumstances where the only photographs (as opposed to a still shot taken from a video) of Ms W on the applicant’s phone were the three photographs which were Exhibit P4, it was open to the primary judge to find that the photograph which Mr Bhattari had been shown by the applicant was one of these photographs.

19. [111]

    Further, in any event, Mr Robinson’s submission in this Court that no inference could be drawn that one of the photographs in Exhibit P4 was shown to Mr Bhattari is foreclosed by the way the applicant’s case was conducted before the magistrate: see R v Birks (1990) 19 NSWLR 677 at 686 (Gleeson CJ); TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46. As set out in the summary of Mr Bhattari’s evidence, the prosecutor applied for leave to cross-examine him under s 38 of the Evidence Act to explore this very point. Had leave been granted, the prosecutor would have been able to show Mr Bhattari the photographs and ask him whether he recognised one or more as having been shown to him by the applicant. Mr Robinson objected to leave being granted for this purpose. In these circumstances, it is not open to him to submit that no inference was available that the photograph which Mr Bhattari was shown was one of the three photographs in Exhibit P4.

20. [112]

    Mr Robinson also submitted that the primary judge was in error in finding that the photographs taken by the applicant of Ms W in Mr O’s room, wearing his clothes were images of what Ms Luitel had witnessed.

21. [113]

    I reject this submission. It is neither what the primary judge found, nor the basis on which the photographs were sought to be used by the prosecution. As referred to above, it was not suggested that the three photographs that comprised Exhibit P4 were taken on the occasion witnessed by Ms Luitel. Rather, they were relied on expressly as tendency evidence (to show that the applicant had a tendency to harass residents for, as Mr Bhattari’s evidence established, his own amusement) and accepted as such with respect to sequences 2 and 3. For the reasons given above, it was open to the primary judge to find that Mr Bhattari had seen at least one of the three photographs in Exhibit P4 and that the applicant, who derived amusement from dressing Ms W in Mr O’s clothes, appreciated that the photographs must neither be seen by staff or families because they were incriminating and would get him into trouble (by jeopardising his position as a registered nurse), as in fact occurred.

22. [114]

    Mr Robinson submitted that the applicant’s explanation for taking the photographs (to document what occurred in order to make a report) was not rebutted and that, therefore, the primary judge was obliged to accept it.

23. [115]

    The ambit of the appeal required the primary judge to review all of the evidence germane to counts 1-4. His Honour addressed the photographic evidence; gave extensive reasons for rejecting the applicant’s explanation; and noted that the applicant did not address how Ms W could have got into Mr O’s room or dressed herself in the coat without the applicant’s intervention. It was open to his Honour to reject the applicant’s explanation.

24. [116]

    I understood Mr Robinson also to submit that it was not open to the primary judge to be satisfied beyond reasonable doubt of the applicant’s guilt of sequences 2 and 3 since the prosecution had not excluded the hypothesis consistent with innocence that someone other than the applicant had dressed Ms W in Mr O’s clothes. He relied on the postulated presence of others in Mr O’s room.

25. [117]

    I do not regard the finding of guilt as legally unreasonable. Each of the matters listed above formed part of the prosecution’s circumstantial case against the applicant. Although the hypothesis that someone other than the applicant was technically open, the evidence, taken as a whole, was sufficient to exclude it. The gate on the door to Mr O’s room was sufficient to exclude any resident from being responsible. Further, Ms Luitel’s observations strongly implicated the applicant. That she did not actually see the applicant dress Ms W in Mr O’s clothes is not fatal to the prosecution case because of the strength of the other evidence supporting that inference. The photographs the applicant took also implicated him, as did his comments to Mr Bhattari as to the context in which the photos were taken, because they were capable of proving (as the primary judge found with respect to sequences 2 and 3) that he had a tendency to harass elderly residents in his care. I regard the hypotheses that someone other than the applicant dressed Ms W in Mr O’s clothes or that she did so herself as nothing more than fanciful and excluded by the evidence, taken as a whole.

26. [118]

    The applicant’s argument proceeded on an assumption, not properly developed, that if the primary judge made a finding of fact that was legally unreasonable that would constitute jurisdictional error on the part of the District Court. The argument fails on the facts. Even on the generous assumption that it would be sufficient for these purposes for the applicant to demonstrate that the verdict was unreasonable applying the principles that govern criminal appeals (see Dansie v The Queen (2022) 274 CLR 651; [2022] HCA 25 at [7]-[8]), the applicant has failed to demonstrate any such unreasonableness.

27. [119]

    Generally, if a conviction is to be challenged, a statutory right of appeal is required, such as is conferred by s 11 of the CAR Act for conviction of summary offences or s 5(1)(a) and (b) for convictions on indictment. The primary judge had jurisdiction under s 11 of the CAR Act to conduct an appeal against conviction by way of rehearing from the orders of the magistrate: s 18 of the CAR Act. There is no such statutory right of appeal from the District Court to this Court and judicial review for errors on the face of the record has been excluded under s 176 of the District Court Act.

28. [120]

    The question of guilt in a criminal context is predominantly a question of fact, which is the preserve of the tribunal of fact. The tribunals of fact in this case were, initially, the magistrate, and, ultimately, the primary judge, both of whom were judicial officers in inferior courts.

29. [121]

    In Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58 (Craig) at 176-180 (Brennan, Deane, Toohey, Gaudron and McHugh JJ), the High Court distinguished between administrative tribunals and inferior courts. It said, of present relevance, at 179-180:

30. [122]

    This passage highlights the importance of maintaining the boundaries of jurisdictional error, lest merits review (which was available in the District Court, but not in this Court) exceed its permitted scope. It was a matter for the primary judge to make an assessment as to the strength and coherence of the evidence of witnesses and to make an assessment of their credibility.

31. [123]

    Even if some defect in the fact finding of the primary judge had been established, it would have been necessary for the applicant to demonstrate that legally unreasonable fact finding constitutes jurisdictional error when the body under review is an inferior court rather than an inferior tribunal. The distinction remains critical to the standard of review that is applied: see Craig at 176-180; Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531 at 570-571; [2010] HCA 1. Mere error of fact by an inferior court does not constitute jurisdictional error: Ghaderi v Director of Public Prosecutions [2018] NSWCA 119 at [11]. In Eliezer v Sydney Water Corporation [2021] NSWCA 300 Preston CJ of LEC (with whom Gleeson and McCallum JJA agreed) held that an inferior court, such as the District Court, “ordinarily does not fall into jurisdictional error by making a legally unreasonable decision on questions of fact or law that are within its jurisdiction to decide. The error of legal unreasonableness is not one of the accepted categories of jurisdictional error of an inferior court recognised in Craig.” Other statements in this Court have suggested that legal unreasonableness, at least in the context of a discretionary determination, may suffice to constitute jurisdictional error by an inferior court: see Mack Fleet Pty Ltd v Transport for NSW [2020] NSWCA 149; (2020) 93 MVR 242 at [44]; L v Minister for Families, Communities and Disability Services [2024] NSWCA 199 at [99].

32. [124]

    In Gazecki v McCabes Lawyers Pty Ltd (2020) 102 NSWLR 259; [2020] NSWCA 98, in the context of an allegation of legal unreasonableness, Basten JA at [14] cautioned against assuming there can be jurisdictional error of law on the part of a court which “except to the extent that its jurisdiction was constitutionally or statutorily limited to particular kinds of matters, would ordinarily have implied authority to determine questions of law”.

33. [125]

    In the present case, in circumstances where the point has not been addressed in detail in submissions and where no erroneous fact finding has been demonstrated it is preferable not to express a view about whether the applicant’s arguments, even if accepted, would establish jurisdictional error.

Conclusion

1. [126]

   The applicant has failed to establish any error which would warrant this Court setting aside the primary judge’s dismissal of the appeal against the magistrate’s findings of guilt in respect of sequences 2 and 3.

The purported challenge to the sentence imposed

1. [127]

   As referred to above, Mr Robinson sought to challenge the sentence in oral submissions in this Court. He relied on prayer 4 in the summons filed on 16 June 2025, as follows:

2. [128]

   The sentence was not otherwise referred to in the summons and no ground was identified which was germane to any challenge to the summons. In his written submissions dated 22 August 2025 in this Court, the applicant referred to the orders sought, including an order quashing the sentence but did not make any submissions as to why this relief ought be granted. In his written submissions in reply dated 13 October 2025 in this Court, the applicant made passing reference to the sentences imposed in the context of a submission that the primary judge had convicted the applicant of sequences 2 and 3 (as opposed to dismissing an appeal against convictions ordered by the magistrate). He also said:

3. [129]

   In this Court, Mr Robinson did not maintain the submission that the applicant ought be dealt with by way of s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). However, he submitted, for the first time orally in this Court, that the primary judge’s reasons for sentence were inadequate and failed to address the submissions put on behalf of the applicant.

4. [130]

   I accept the submission put on behalf of the respondent that this Court ought not, in these circumstances, entertain a challenge to the sentences imposed.

Orders

1. [131]

   I propose the following orders:

   1. (1)

      Dismiss the application.

   2. (2)

      Order the applicant to pay the first respondent’s costs.

2. [132]

   FREE JA: I agree with Adamson JA.