Burton v The King; Katelaris v The King

[2025] NSWCCA 89

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Burton v R; Katelaris v R [2025] NSWCCA 89

Hearing dates:

12 May 2025

Decision date:

10 June 2025

Before:

Adamson JA; Dhanji J; Weinstein J

Decision:

In proceedings 2017/387583:

(1)   Grant leave to appeal on grounds 3, 4, 5 and 6.

(2)   Dismiss the appeal.

In proceedings 2017/388124:

(1)   Grant leave to appeal on grounds 3, 4, 5 and 6.

(2)   Dismiss the appeal.

Catchwords:

CRIME — appeals — appeals against convictions — offences of publishing or broadcasting the name of a child with respect to whom proceedings before the Children’s Court were brought — posts uploaded to Facebook referring to child by name — self-represented appellants — whether indictment invalid — whether failure to leave alleged defences to jury — whether error in instructing jury of effect of removing Facebook posts — whether error in directions to jury about time of the offences — whether failure to dismiss matter where no harm to child allegedly shown — whether failure to allow the appellant Katelaris to inform jury of right to acquit even if offence had been proved — where grounds 1, 2 and 7 raised a question of law alone and did not require leave — leave to appeal on grounds 3, 4, 5 and 6 granted — appeal dismissed

Legislation Cited:

Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 43, 105

Crimes (Appeal and Review) Act 2001 (NSW), s 107

Crimes Act 1900 (NSW), ss 178BB, 418

Criminal Appeal Act 1912 (NSW), ss 5, 5C, 6

Criminal Procedure Act 1986 (NSW), ss 16, 17, 20, 21, 126, 130

Indictments Act 1915 (UK), s 5

Occupational Health and Safety Act 2000 (NSW), s 8

Cases Cited:

Attorney General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299; (2013) 239 IR 102

Bell v State of Tasmania (2021) 274 CLR 414; [2021] HCA 42

Bergin v Stack (1953) 88 CLR 248; [1953] HCA 53

Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14

Broome v Chenoweth (1946) 73 CLR 583; [1946] HCA 53

Demirok v The Queen (1977) 137 CLR 20; [1977] HCA 21

Doja v R [2009] NSWCCA 303; (2009) 198 A Crim R 349

Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34

Huynh v The Queen [2013] HCA 6; (2013) 295 ALR 624

John L Proprietary Limited v The Attorney-General for the State of New South Wales (1987) 163 CLR 508; [1987] HCA 42

King v The Queen (2003) 215 CLR 150; [2003] HCA 42

Lodhi v R [2006] NSWCCA 121; (2006) 199 FLR 303

Maher v The Queen (1987) 163 CLR 221; [1987] HCA 31

Oblach v R (2005) 65 NSWLR 75; [2005] NSWCCA 440

R v Burgess; R v Saunders [2005] NSWCCA 52; (2005) 152 A Crim R 100

R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281

R v Pople [1951] 1 KB 53

R v Swansson; R v Henry (2007) 69 NSWLR 406; [2007] NSWCCA 67

Rockdale Beef Pty Ltd v The Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7

Rogers v R (1996) 86 A Crim R 542

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Tonari v R [2013] NSWCCA 232; (2013) 237 A Crim R 490

Veira v Cook [2021] NSWCA 302; (2021) 293 A Crim R 569

Category:

Principal judgment

Parties:

Proceedings 2017/387583
Paul Burton (Appellant)
Rex (Respondent)

Proceedings 2017/388124
Andrew Katelaris (Appellant)
Rex (Respondent)

Representation:

Counsel:
Proceedings 2017/387583
Self-represented (Appellant)
C Young (Respondent)

Proceedings 2017/388124
Self-represented (Appellant)
C Young (Respondent)

Solicitors:
Proceedings 2017/387583
Not applicable (Appellant)
Solicitor for Public Prosecutions (NSW) (Respondent)

Proceedings 2017/388124
Not applicable (Appellant)
Solicitor for Public Prosecutions (NSW) (Respondent)

File Number(s):

2017/387583; 2017/388124

Publication restriction:

Publication of names and any information or material that may lead to the identification of the child is prohibited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A; Court Suppression and Non-publication Orders Act 2010 (NSW), s 7

 Decision under appeal 

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

13 November 2024

Before:

Harris DCJ

File Number(s):

2017/387583; 2017/388124

HEADNOTE

[This headnote is not to be read as part of the judgment]

Following a trial by jury, the appellants, Paul Burton and Andrew Katelaris, were each convicted of offences of either publishing or broadcasting the name of a child with respect to whom proceedings before the Children’s Court had been brought, contrary to s 105(2) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Act). In early 2017, the appellants became associated with the parents of CWS, a four-year-old child. In May 2017, CWS was removed from the care of his parents pursuant to an order made by a delegate of the Secretary of the Department of Family and Community Services. Proceedings in respect of CWS were commenced in the Children’s Court. Each of the four counts with which Mr Burton was convicted and the single count with which Mr Katelaris was convicted related to posts uploaded by the appellants to Facebook referring to CWS by name in July 2017.

Mr Burton sought leave to appeal against his convictions on six grounds. Grounds 1 and 2 were based on a contention that the indictment, prior to the amendment of the charges during the course of the trial, was invalid as it failed to properly charge offences. Ground 3 concerned an asserted failure to leave defences the appellants argued had been raised to the jury. Ground 4 concerned the effect of removing the posts. Ground 5 concerned the need to prove the date of the offences and ground 6 the need to prove harm. Mr Katelaris relied on all grounds raised by Mr Burton and sought leave to appeal on a further ground, ground 7, which concerned what could be said to the jury about its right to acquit, even if the offence had been proved. Only grounds 1, 2 and 7 raised a question of law alone and did not require leave.

The Court held (Adamson JA, Dhanji and Weinstein JJ) granting leave to appeal on grounds 3, 4, 5 and 6 and dismissing the appeal:

As to grounds 1 and 2:

1. Having regard to the simple nature of the offence, and what was necessarily required to establish publishing or broadcasting (that is, that it was done in a form accessible by a person in New South Wales), there could have been no misunderstanding as to the basis upon which the Crown asserted that the offences were committed. The formulation of the charges were, at best for the appellants, imperfect formulations of known offences. The indictment, prior to amendment, was sufficient to invoke the jurisdiction of the District Court (at [68]-[76]).

2. The amendment to the indictment was made without injustice. Mr Burton drew the trial judge’s attention to the defect in the original indictment and the amendment did not require any further evidence to be adduced, nor would it have altered the course of the evidence. The original indictment, though found to be defective prior to the amendment being allowed, was not a nullity (at [77]-[78]).

Attorney General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299; Rockdale Beef Pty Ltd v The Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7; Broome v Chenoweth (1946) 73 CLR 583; [1946] HCA 53; Tonari v R [2013] NSWCCA 232; (2013) 237 A Crim R 490 considered; Doja v R [2009] NSWCCA 303; (2009) 198 A Crim R 349 applied; Lodhi v R [2006] NSWCCA 121; (2006) 199 FLR 303 distinguished.

As to ground 3:

1. The evidence adduced, taken at its highest, was manifestly insufficient to cause a reasonable jury to have a reasonable doubt that each of the elements of the defence of self-defence had been negatived by the prosecution. There was no error in the trial judge’s ruling that she would not leave the defence of self-defence to the jury (at [91]-[92]).

R v Burgess; R v Saunders [2005] NSWCCA 52; (2005) 152 A Crim R 100; Oblach v R (2005) 65 NSWLR 75; [2005] NSWCCA 440 considered.

1. Given the lack of logical connection between publication of/broadcasting CWS’s full name and protecting him from death or serious injury, there was no proper evidentiary basis on which to leave the defence of necessity to the jury (at [96]).

Veira v Cook [2021] NSWCA 302; (2021) 293 A Crim R 569; Rogers v R (1996) 86 A Crim R 542 considered.

1. Taking Mr Burton’s evidence at its highest, there was no basis for the trial judge to leave the defence of honest and reasonable mistake of fact to the jury (at [98]-[101]).

Bell v State of Tasmania (2021) 274 CLR 414; [2021] HCA 42 considered.

As to ground 4:

1. The offence under s 105(2) of the Act is complete at the time of publication or broadcast. Whether the publication is removed or the broadcast deleted is irrelevant to whether an offence under s 105(2) has been committed. No error was shown (at [105]-[106]).

As to ground 5:

1. The date which was essential was the date on which the proceedings in the Children’s Court were filed, which was 24 May 2017. The Facebook posts post-dated that date. The evidence accorded generally with the dates of publication or broadcast alleged by the Crown in the indictment. No error was shown in the trial judge’s orthodox directions to the jury (at [108]).

As to ground 6:

1. It is not an element of an offence under s 105(2) of the Act that the Crown prove harm to the child concerned or that the child’s privacy was affected. These matters, even had they been established, provided no proper basis on which the trial judge could have dismissed the indictment (at [110]-[111]).

As to ground 7:

1. The ground, in terms, was not made out because Mr Katelaris had made the very submission in his closing submissions to the jury which he alleged in ground 7 he was not permitted to make (at [115]).

2. If the gravamen of Mr Katelaris’ submission was, however, that the trial judge was not entitled to direct the jury that they were bound to apply the law and to act on the evidence before them in coming to a verdict, it must be rejected. Where counsel or a litigant in person misstates the law, the trial judge is entitled, and generally obliged, to rectify the misstatement (at [114]-[115]).

Demirok v The Queen (1977) 137 CLR 20; [1977] HCA 21; The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 considered.

JUDGMENT

1. THE COURT: Following a trial by jury over which Harris DCJ (the trial judge) presided, Paul Burton and Andrew Katelaris (the appellants) were convicted of offences against s 105(2) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Act), which relevantly prohibits the publication or broadcast in a form that may be accessible by a person in New South Wales of the name of a child with respect to whom proceedings before the Children’s Court are brought within the meaning of s 105(1)(b) of the Act.

2. The charges in the indictment, each of which resulted in a conviction in respect of the publication or broadcast of CWS’s name were as follows:

Count	Date	Offender	Relevant act
1	4 July 2017	Mr Burton	Publish
2	6 July 2017	Mr Burton	Broadcast
3	11 July 2017	Mr Burton	Publish
4	11 July 2017	Mr Burton	Broadcast
5	11 July 2017	Mr Katelaris	Publish

3. Mr Burton seeks leave to appeal on the following grounds:

1   The trial judge erred after finding the indictment was invalid (as it did not contain an essential element and so did not disclose an offence punishable by law), by then failing to dismiss the jury and discharging the defendant.

2    The trial judge further erred by allowing an amendment to an invalid indictment.

3   The trial judge erred (notwithstanding the indictment was invalid) by refusing the appellant any defences and robbing him of his right to a fair jury trial by 12 peers.

4   The trial judge erred (notwithstanding the indictment was invalid) by instructing the jury that it did not matter that the accused abided by the law when the alleged breaches were properly brought to his attention.

5   The trial judge erred (notwithstanding the indictment was invalid) by failing to tell the jury that time was an essential element and that they only needed to find the posts were on or around the times charged.

6 The trial judge erred (notwithstanding the indictment was invalid) by not dismissing the matter when the evidence showed that nothing the appellant was alleged to have done had any impact on the privacy or identity of the child or caused the child stigma, that is s 105 was being used for an improper purpose.

4. Mr Katelaris relied on all grounds raised by Mr Burton but also seeks leave to appeal on the following ground:

7   The trial judge erred by refusing to allow Mr Katelaris to inform the jury of its power to give a verdict against the statute law, if strongly directed by their conscience, in a particular case.

5. Grounds 1, 2 and 7 raise a question of law alone and therefore do not require leave but Mr Burton requires leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) in respect of grounds 3-6. Given the existence of a right of appeal with respect to at least some of the grounds, Mr Burton and Mr Katelaris will be referred to as the appellants.

The trial

6. The trial commenced on 30 October 2024. The jury returned guilty verdicts on each count on 13 November 2024. On 22 November 2024, the trial judge imposed a $250 fine in respect of each of counts 1-4 ($1,000 in total) on Mr Burton and a fine of $500 on Mr Katelaris for count 5.

The arraignment of the appellants on the first day of the trial

7. Each count of the indictment presented at the commencement of the trial on 30 October 2024, on which each of the appellants was arraigned, was in the following terms for each count:

On [date], at Newcastle, in the State of New South Wales, did [publish/broadcast] the name of a child, CWS, with respect to whom proceedings have been brought before the Children’s Court of New South Wales.

S 105(2) Children and Young Persons (Care and Protection) Act 1998 Law part code 37753

8. Section 105 of the Act relevantly provides:

105   Publication of names and identifying information

(1)     The name of a child or young person—

…

(b)     with respect to whom proceedings before the Children’s Court are brought or who is reasonably likely to be the subject of proceedings before the Children’s Court, or

…

must not be published or broadcast in any form that may be accessible by a person in New South Wales whether the publication or broadcast occurs before any proceedings have commenced, during the proceedings or after they are disposed of.

(1B)     This section applies to the publication or broadcast of a child or young person’s name to the public, or a section of the public, by publication in a newspaper or periodical publication, by radio or television broadcast or other electronic broadcast, by the internet, or by any other means of dissemination.

(1C)     The publication of information to a website that provides the opportunity for, or facilitates or enables, dissemination of information to the public or a section of the public (whether or not the particular publication results in the dissemination of information to the public or a section of the public) constitutes the publication of information to the public or a section of the public for the purposes of this section.

(2)     A person who publishes or broadcasts the name of a child or young person in contravention of subsection (1) or (1AA) is guilty of an offence.

Maximum penalty—200 penalty units or imprisonment for a period not exceeding 2 years, or both, in the case of an individual or 2,000 penalty units in the case of a corporation.

(3)     Subsection (1) or (1AA) does not prohibit—

…

(b)     the publication or broadcasting of the name of a child or young person—

(i)     in the case of a child—with the consent of the Children’s Court, or

…

(iii)     in the case of a child or young person who is under the parental responsibility of the Minister—with the consent of the Secretary if the Secretary is of the opinion that the publication or broadcasting may be seen to be to the benefit of the child or young person, or

…

(iv)     in any case—if the child or young person has died.

…

(4)     For the purposes of this section, a reference to the name of a child or young person includes a reference to any information, picture or other material—

(a)     that identifies the child or young person, or

(b)     that is likely to lead to the identification of the child or young person.

(5)  The offence created by this section is an offence of strict liability.

…

9. The charges in the present case were brought under s 105(2) of the Act.

The Crown’s opening

10. The prosecutor informed the trial judge, prior to opening, that he had provided a copy of his opening to the accused. He referred to the publication or broadcast “in any form accessible to a person in New South Wales” as an element of the offence which the prosecution had to prove beyond reasonable doubt. This is relevant to grounds 1 and 2.

The evidence in the trial

11. In 2017, Mr Burton and Mr Katelaris were associated with the Ubuntu church and Ubuntu Wellness Centre in Newcastle. At that time, CWS, a four-year-old child had serious health conditions, including severe epilepsy and cerebral palsy. In early 2017, both appellants became associated with CWS’s parents. In April 2017, CWS and his parents travelled to Newcastle from Queensland following an amber alert with respect to CWS.

12. On 19 May 2017, CWS was removed from the care of his parents pursuant to an order made by a delegate of the Secretary of the Department of Family and Community Services (FACS) under s 43(1) of the Act, which was made on the ground that CWS was at immediate risk of harm (because he had critically low levels of potassium consistent with malnutrition). Mr Burton was present at the Ubuntu Wellness Centre when CWS was removed from his parents.

13. On 24 May 2017 proceedings in respect of CWS were commenced in the Children’s Court. On 25 May 2017, the Children’s Court made interim orders that CWS remain in the care of the Minister.

14. On 16 June 2017, Catherine Samuels, the then Director of Child Protection and Legal Services at FACS, was asked to advise about Facebook posts posted by the appellants referring to CWS.

Evidence of counts 1-4

The prelude

15. On 27 June 2017 at 8.27am, Ms Samuels sent an email to Mr Burton on behalf of FACS and requested that he urgently remove, within 24 hours of receipt of the email, a number of Facebook posts in which CWS was referred to by name. She drew his attention to s 105 of the Act and informed him that he was liable to prosecution under that section.

16. On 27 June 2017 at 11.19am, Mr Burton responded by email, saying that he was “hugely relieved that someone has finally contacted [him]”, had “removed all posts that are in breach” and was “happy to do all [he could] to comply with this information now it has been provided to [him]”.

Count 1: Mr Burton’s post on 4 July 2017

17. On 4 July 2017, Mr Burton posted a message to his Facebook page entitled “Eulogy” which said in part:

Today is 46 days since our Church was desecrated and a family whom came to us for refuge was violently assaulted and their child forcibly removed from their loving arms.

…

If [full name of CWS] is not physically reunited in some capacity with his family then I am going to reunite the family.

18. The post included a video of events on the day on which CWS was removed from his parents in which CWS was shown and named. The video concluded with the following written statement:

… next court date is 22nd June 2017. Broadmeadow Children’s Court 19-23 Lambton Rd Broadmeadow NSW Australia at 9am.

19. On 6 July 2017 at 6.28am, Ms Samuels sent Mr Burton an email concerning his Facebook post of 4 July 2017 and informed him that the post was a breach of s 105 of the Act. She said, in part:

… If you fail to remove this material and/or continue to post material in breach of the law including threatening to abduct [CWS], you may be liable to prosecution.

Count 2: Mr Burton’s post of 6 July 2017

20. On 6 July 2017, Mr Burton uploaded to his Facebook page a video in which he discussed CWS and the correspondence from Ms Samuels. Mr Burton mentioned CWS by name during the video including when he said, “7 weeks since we’ve, since [name of CWS] has any physical contact that I’m aware of with his family”.

20. Mr Burton also said in the video:

… what are they going to do? They’ve sent me a warning letter…. Well, they can arrest me for yelling someone’s name out that they want me to silence or removing a t-shirt, or not removing a t-shirt with a picture of a boy that I love, right, they, they can do that but what happens then. They’re going to take me to court. Now as a[n] adult I’ll get a jury.

22. On 9 July 2017 at 4.42pm, Mr Burton emailed a written statement dated 7 July 2017 to Ms Samuels in which he said in part:

Now, in regards to your correspondence and requests please note.

I completely and unquestionably refuse to remove any of my facebook posts, social media posts and any other publications associated with this case. I will also continue to say and do what I wish on all media platforms.

I welcome the opportunity to be held fully accountable for the previous release of this information you have mentioned and I look forward to attending court as soon as is possible and you are able to find something to charge me with.

Count 3: Mr Burton’s post of 11 July 2017

23. On 11 July 2017, Mr Burton posted on his Facebook page the statement which he had sent by email to Ms Samuels on 9 July 2017 in which CWS was identified by name.

Count 4: Mr Burton’s live video on 11 July 2017

24. On 11 July 2017, Mr Burton posted a live video to his Facebook page in which he read out his statement to Ms Samuels. In the video, Mr Burton identified CWS by his full name, including in the statement:

If you could respectfully forward this correspondence to the Magistrate who is now handling the case for [full name of CWS] …

25. He also mentioned that he attended the Children’s Court that day. Further, Mr Burton said “all I ever humbly asked in this matter was that at the very least, this family be somehow reunited with their child in hospital until this case was completed and their innocence or guilt determined”.

Count 5: Mr Katelaris’ post on 11 July 2017

26. On 10 July 2017 at 10.48am, Ms Samuels sent an email to Mr Katelaris, attaching a letter dated 7 July 2017 which sought the “urgent removal” of certain Facebook posts and informed the recipient that s 105 of the Act prohibited the publication of the name of a child with respect to whom proceedings before the Children’s Court had been brought. She informed Mr Katelaris that “[p]ublications, including public social media posts, made in breach of s.105 may be liable to prosecution”.

27. On 11 July 2017, Mr Katelaris posted a message to his Facebook page which began, “Dear Facebook friends”. Mr Katelaris then published the above letter from Ms Samuels and told his followers “[o]n a matter of such [i]mportance relating to the care of children I have no intention of adhering to this censorship”. The post identified CWS by name on numerous occasions, including the following:

[Full name of CWS] was [sic] been seized by your department on grounds that are demonstrably spurious.

Evidence of the appellants’ beliefs

28. Each of the appellants gave evidence and was cross-examined about the reason for posting the messages and videos.

29. The following exchange occurred in Mr Burton’s cross-examination:

Q. What I want to suggest to you, is you deliberately were provoking FACS, you were deliberately publishing the name of the child to make them take some action.

A. No, that’s not true. What I was trying to do, was I was trying to get the attention of the Courts.

30. The following exchange occurred in Mr Katelaris’ cross-examination:

Q. And that is, you knew section 105 said you couldn’t publish the name of a child.

A. I was aware of the law, and I was aware that it had been used for an improper purpose to cover up the crimes of the department, rather than protect the privacy of the children.

Q. What I want to suggest to you, in publishing that letter, which contained the child’s name and reference to proceedings, that you wanted to, in effect, put the department on trial.

A. Yes.

Mr Burton’s evidence about the timing of the broadcast and publication of the posts

31. The appellants gave the following evidence about the timing of the posts.

Count	Date alleged in indictment	Offender	Evidence of accused
1	4 July 2017	Mr Burton	Either 3 or 5 July 2017
2	6 July 2017	Mr Burton	Possible that it was 6 July 2017; 48 or 49 days since CWS was taken
3	11 July 2017	Mr Burton	Written on 7 July 2017 and emailed on 9 July 2017 (and then posted to the internet)
4	11 July 2017	Mr Burton	52 or 53 days since CWS was taken, which meant that it would have been 10-12 July 2017
5	11 July 2017	Mr Katelaris	Date identified in post as being 11 July 2017

The direction given in response to the jury note about the effect of taking a post down

32. On 6 November 2024, while Mr Burton was giving evidence, the jury sent a note which, relevantly, posed the following questions:

Q3   Does it matter whether the accused received a letter from FACS or not?

… further …

Does it matter that the FACS letter was not specific with date/time stamps of the exact posts in breach of legislation?

Q4   Does it matter whether a post/s was eventually deleted from Facebook?

33. In the summing up on 13 November 2024, the trial judge answered each of these questions in the negative. These answers are the subject of challenge in grounds 4 and 5. A different issue relating to dates is separately raised in ground 6.

The appellants’ application at trial that certain defences be left to the jury

34. The defence case closed on Friday 8 November 2024. For the balance of the day, in the absence of the jury, there was discussion between bar and bench, including about the defences which would be left to the jury. The appellants submitted to the trial judge that the following defences ought be left to the jury: necessity, self-defence, duress and honest and reasonable mistake of fact. The Crown submitted that the defences did not arise on the evidence and therefore ought not be the subject of directions to the jury. The trial judge allowed the appellants to put any further written submissions by 10am on Sunday 10 November 2024 and indicated that a ruling would be made on Monday 11 November 2024.

Mr Burton’s application for a discharge of the jury on the basis that the indictment was defective

35. On Sunday 10 November 2024, Mr Burton sent an email to the Court in which he said that the indictment “left out the element of being able to be seen in NSW”. It was common ground that this was a reference to the words in s 105 that the name of a child “must not be published or broadcast in any form that may be accessible by a person in New South Wales”. During the course of the day, the Crown responded to the email by submitting that there was no error in the indictment.

The parties’ submissions

36. On Monday 11 November 2024, the ninth day of the trial, Mr Burton expanded on the written submissions he had emailed the previous day in support of his contention that the indictment was invalid and that, accordingly, the jury ought be discharged. The trial judge invited Mr Burton to identify any prejudice which would flow if her Honour were to allow the indictment to be amended.

37. The Crown responded by submitting that the indictment did not need to be amended because it alleged the offence charged and the appellants had received ample notice of the case they had to meet by reason of the terms of s 105(2) and the Crown Case Statement. In the alternative, the prosecutor applied to amend the indictment pursuant to ss 20 and 21 of the Criminal Procedure Act 1986 (NSW).

38. Mr Burton replied at length to the prosecutor’s submissions.

The trial judge’s orders and judgment

39. On 11 November 2024, after hearing submissions, the trial judge granted leave to the Crown to amend the indictment and gave ex tempore reasons for her order.

40. In her ex tempore reasons, the trial judge noted that the prosecutor had opened the Crown case to the jury on the basis that it needed to prove beyond reasonable doubt the element that the publication or broadcast of CWS’s name was “in a form accessible to a person in New South Wales”. Her Honour described the omission to allege this element in the indictment as a “defect”. Her Honour also said:

It seems to me there has been no identifiable prejudice caused to the accused by, even at this late stage of the trial, permitting the Crown to present an amended indictment …

Arraignment on the amended indictment

41. On 11 November 2024, the accused were arraigned on the amended indictment. Each pleaded not guilty to the charge or charges. Each charge on the amended indictment was in the following form:

On [date], at Newcastle, in the State of New South Wales, did [publish/broadcast] the name of a child, CWS, in a form accessible by a person in New South Wales with respect to whom proceedings have been brought before the Children’s Court of New South Wales.”

S 105(2) Children and Young Persons (Care and Protection) Act 1998 Law part code 37753

(Emphasis added in bold to indicate the amendment.)

Ruling regarding defences which would be left to the jury

42. Also on 11 November 2024, the trial judge ruled that none of the defences raised by the appellants arose on the evidence and, accordingly, no directions regarding them would be given to the jury. Her Honour gave detailed ex tempore reasons for the ruling.

Self-defence

43. In respect of self-defence, her Honour said:

The recordings posted by Mr Burton, relied upon the Crown to prove the counts on the indictment are mostly late at night and absent any sense of urgency. Rather they are demonstrative of a crusade by both Mr Burton and Dr [sic] Katelaris against the intrusion of the Department of Family and Community Services.

…

Both accused had successfully advocated on behalf of the family in Queensland by attending meetings with Queensland child protection services, and Mr Burton writing to that service on behalf of the family. These were alternative ways to address any concerns and attempt to have the child reunited with his family. Their actions in publishing the child’s name in connection with the Children’s Court proceedings cannot on any view be considered an act of self-defence in favour of the child, or an objectively reasonable response to the situation that the accused subjectively believed he faced.

44. In response to the submission that CWS had been unlawfully deprived of his liberty within the meaning of s 418(2)(b) of the Crimes Act 1900 (NSW), the trial judge found:

In my view, subs (2)(b) does not have application in circumstances where the evidence does not establish that the accused was responding to unlawful conduct and that CWS had been abducted. While it is the view of both accused that the child was seized unlawfully, abducted by the state authorities for financial gain, the evidence does not establish this to be the case but rather, that the child was removed from the care of his parents pursuant to the provisions of the Children and Young Persons (Care and Protection) Act, 1998 and a determination made that he was at serious risk of harm. A mistaken belief by the accused about the matter will not avail: see R v Burgess; R v Saunders at [12].

Necessity

45. The trial judge said, of relevance to the defence of necessity:

Despite the submissions of both accused, the evidence reflects that the state of affairs with which they were confronted was not one of imminent peril. The posts and broadcasts were approximately seven weeks after the child was removed and they were aware that the matter had been before the Children’s Court on at least three occasions. Other than the speculative views of both accused, there was no evidence that the child was in fact at risk of death or serious harm given he was under the care of medical professionals and a state department which was itself subject to the authority and directions of the Children’s Court. The accused themselves had a copy of the report of Dr Stephen Knipe (Exhibit 8) which reflected a high level of medical and therapeutic input and interests in the care, health and welfare of the child. There is no evidence to establish from an objective viewpoint that either accused in breaching s 105 acted reasonably and proportionately in order to avoid a threat of death or serious injury. There is insufficient evidence to establish that breaching s 105 was necessary or reasonably believed to be necessary for the purpose of avoiding death or serious injury to CWS.

There was no necessity in any event to publish the name of the child. The evidence is overwhelmingly that Mr Burton at least acted not out of necessity but out of frustration having been cut off from communication channels and being told of his outsider status at least since 27 June 2017.

The Crown closing address

46. The Crown’s closing address included the following:

So what is this trial actually about? It’s about Pastor Burton and Dr [sic] Katelaris wanting to bring attention to the matter. They believed the child was kidnapped. There is no issue about that. They believed it. But they were outraged. They were warned by F[A]CS. They were told not to publish the name of the child. They had already done so. They were told to remove it, but they were told not to continue doing it, and they did continue doing it, even when they were warned.

Mr Katelaris’ closing address

47. In his closing address, Mr Katelaris made submissions which were highly critical of the judiciary, the law and of s 105 of the Act in particular. He invited the jury to acquit him on the basis that the law was a bad one. He repeated the substance of this submission at the conclusion of his closing address (see below).

48. Before his submissions had concluded, the trial judge directed the jury as follows:

I just want to say to you something about the submissions that have been made to you this afternoon, about how you should return your verdicts. And there’s nothing wrong with that submission of itself, but submissions were also made that if you returned a verdict of guilty, that certain consequences would follow, and I think one of the submissions made would be that you’re making the protection of children a crime, and supporting a bad law. I’ll just leave it there.

I must direct you to put those submissions to one side. You have sworn an oath and an affirmation to return your verdicts in accordance with the evidence. That evidence you must consider in light of the legal directions that I will give you, and you will be told what the elements are that the Crown must prove beyond reasonable doubt.

So please, your role as a juror ends when you deliver your verdicts, and I must direct you to put anything that might suggest you’re supporting some sort of corrupt government department in doing so, you must put those submissions to one side. All right, thank you.

(Emphasis added.)

49. This direction is the subject of ground 7.

50. At the conclusion of his closing address, after the trial judge had directed the jury as set out above, Mr Katelaris said:

… From time to time, and, in fact, with distressing frequency, laws are made which are wrong. I’ve already been subject to these laws.

Any law that will put a child’s life at risk because they can’t have life-saving medicine is wrong. The last time I was before a jury, I was facing a life imprisonment for that. The jury took 20 minutes to acquit me because they knew the law was wrong, and they knew they had the power over the system to acquit. And that’s what I really would like you to do today for the sake of the two of us, but, more importantly, for the sake of the children that have been taken and will be taken if we don’t put an end to [s] 105 [of the Act].

The grounds of appeal

Grounds 1 and 2: the amendment to the indictment

51. Each of grounds 1 and 2 concerns the amendment to the indictment, which the trial judge allowed after the close of the defence case and immediately prior to the commencement of the Crown address.

52. Mr Burton argued that the absence of an essential element meant that the original indictment was a “nullity” and therefore could not be amended. Mr Katelaris adopted his submissions.

53. The question whether an indictment is a nullity is a question of law. Accordingly, leave to appeal in respect of grounds 1 and 2 is not required.

54. The identification of the essential factual ingredients of a charge is one of the purposes of an indictment: John L Proprietary Limited v The Attorney-General for the State of New South Wales (1987) 163 CLR 508 at 519; [1987] HCA 42. Exceptions include murder and statutory alternatives to offences charged. The importance of identifying the elements of each count is such that a consequence of failing to do so may lead to the quashing of the indictment and, in some cases, to the quashing of a conviction.

55. For example, in Lodhi v R [2006] NSWCCA 121; (2006) 199 FLR 303 (Lodhi), this Court (Spigelman CJ, McClellan CJ at CL and Sully J agreeing) granted leave to appeal against the dismissal by a trial judge of the appellant’s challenge to the indictment presented against him and, instead, quashed the indictment. One of the bases of the appellant’s successful challenge was that the indictment failed to state the essential elements of the offence charged. The appeal in Lodhi, it should be noted, was brought prior to conviction.

56. However, a conviction based on an indictment where an element of the offence has not been alleged in the indictment may stand if, for example, the proviso in s 6(1) of the Criminal Appeal Act (which entitles this Court to dismiss an appeal if it “considers that no substantial miscarriage of justice has actually occurred”) is applied. Whether the proviso can be applied will depend on the nature of the defect. The failure to allege an offence in the indictment may be of itself a “substantial miscarriage of justice” such that the proviso cannot be applied. In circumstances where the charge in an indictment is insufficiently pleaded so that it does not invoke the jurisdiction of the court, the resulting trial is commonly described as a “nullity”. In R v Swansson; R v Henry (2007) 69 NSWLR 406; [2007] NSWCCA 67, this Court held, by majority, that the proviso could not be applied to a trial that was, in fact, a nullity.

57. Doja v R [2009] NSWCCA 303; (2009) 198 A Crim R 349 (Doja) was a case in which, despite the failure to properly plead the elements of two counts in the indictment, the proviso was available. In Doja, counts 13 and 14 of the indictment charged offences under s 178BB of the Crimes Act (obtaining money by false or misleading statements). These offences required proof that the accused knew that the statements were false or misleading in a material particular or that the statements were made with reckless disregard as to whether they were true or false or misleading in a material particular. The two counts did not contain an averment of this essential element in that they were expressed without reference to the accused’s knowledge or reckless disregard of the truth. Neither the trial judge nor trial counsel detected the oversight at the trial. The appellant argued that the verdicts on those counts, and therefore the convictions, were invalid.

58. This Court dismissed the appeal. The majority, McClellan CJ at CL (Grove J agreeing), held that the appellant was properly convicted whether by common law doctrine or the application of the proviso (it considered that no substantial miscarriage of justice had actually occurred). Spigelman CJ agreed with the Chief Judge that the case was an appropriate one for the proviso although his Honour also considered that the averment of the mental element was necessarily implied and that the defect was “formal” for the purposes of ss 16 and 17 of the Criminal Procedure Act.

59. Of present relevance, McClellan CJ at CL said at [158]–[159]:

158   The 19^th century cases which defined the common law response to a defective indictment were decided before the contemporary statutory procedures for the laying of criminal charges and the conduct of criminal trials were enacted. However, the policy evident in the statutory regime is consistent with the common law position. Where the defect deprives the court of jurisdiction a conviction cannot save the indictment and the conviction must be quashed. So much is plain if the indictment was not signed by an authorised person or alleged an offence unknown to the law. However, provided the court has jurisdiction and it may be concluded that the jury has been properly instructed as to the elements of the relevant offence, and the accused has not been prejudiced in his trial a conviction for that offence will not be disturbed.

159   In my opinion, although defective with respect to counts 13 and 14, the indictment in the present case was not itself invalid so as to deprive the District Court entirely of jurisdiction. The considerations which led to the quashing of the conviction in Janceski [where the indictment was signed by a person not authorised to do so] are not relevant in the present case. If objection had been taken at the trial the problem could have been dealt with by amendment of the indictment which would have been granted pursuant to s 17 of the Criminal Procedure Act.

(Emphasis added.)

60. The question for this Court is whether the trial judge had power to allow the original indictment, which did not allege an element of the count, to be amended to add that element. That in turn depends on whether the indictment, prior to its amendment, was sufficient to invest the court with jurisdiction. For the reasons which follow, the trial judge was authorised to allow the amendment.

61. Section 20 of the Criminal Procedure Act relevantly provides:

20   Amendment of indictment

(1)     An indictment may not be amended after it is presented, except by the prosecutor—

(a)     with the leave of the court, or

(b)     with the consent of the accused.

(2) This section does not affect the powers of the court under section 21.

…

62. Section 21 of the Criminal Procedure Act relevantly provides:

21   Orders for amendment of indictment, separate trial and postponement of trial

(1)     If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case.

…

(6)     Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes.

63. At common law, an indictment could not be amended: Maher v The Queen (1987) 163 CLR 221 at 230 (Mason CJ, Wilson, Brennan, Dawson and Toohey JJ); [1987] HCA 31. Thus, whether an indictment can be amended turns on the breadth of any power conferred by statute to permit the Court to grant leave to amend an indictment.

64. The common law position was changed in the United Kingdom by the Indictments Act 1915 (UK) which, in s 5, authorised the amendment of an indictment. The evident purpose of the provision was to overcome the technicalities of the common law rules of criminal pleading: R v Pople [1951] 1 KB 53 at 54 (Humphreys, Finnemore and Slade JJ).

65. Whether an amendment to an indictment is authorised depends on the wording of the statute which confers the power of amendment. Sections 20 and 21 of the Criminal Procedure Act confer power on the court to amend a “defective” indictment: see Doja at [159] and the discussion in Tonari v R [2013] NSWCCA 232; (2013) 237 A Crim R 490 (Tonari) at [89]-[95] (Johnson J). This power may include a power to rectify the omission of an element of the offence in the count as charged in the original indictment.

66. An amendment to an indictment to add an allegation of an element of the offence charged is to be distinguished from a case such as R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281 where s 126 of the Criminal Procedure Act required that an indictment be signed by particular persons and the indictment presented was not signed by any one of the persons authorised by the statute: see Doja at [159]. In that case, the indictment was held to be invalid, the conviction was set aside and a re-trial ordered.

67. The question in the present case thus turns on two related questions. First, whether the indictment in its original form was invalid, and secondly, if not, whether it could be amended without injustice.

The indictment in its original form was not invalid

68. With respect to the first question, we are of the view that the indictment, prior to amendment, was valid and the District Court was thus invested with jurisdiction: s 130(2) of the Criminal Procedure Act. The formulation of the charges were, at best for the appellants, imperfect formulations of known offences: see Attorney General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299; (2013) 239 IR 102 (Built); Doja at [22] (Spigelman CJ). Expressed differently, any defect was not a fundamental failure rendering the indictment a nullity: Tonari at [84]-[85] (Johnson J).

69. In Tonari (at [84]-[93]), Johnson J (Price and R A Hulme JJ agreeing) provided the following overview of the distinction between mere defects and fundamental failures:

84   Even if the view be formed that the s 61J(1) counts in this case were deficient because of the failure to specify fully the relevant circumstances of aggravation, I am satisfied that this would constitute a mere defect and not a matter rendering those counts (or the indictment) a nullity.

85   The distinction between a mere defect and a fundamental failure (rendering the indictment a nullity), referred to by Lord Bridge of Harwich in R v Ayres at 460-461, has been adopted and applied in a number of decisions in Australia.

86   In Kahatapitiye v R [2004] WASCA 189; 146 A Crim R 542, the failure to include the words “without her consent” in sexual assault counts was held not to render the indictment a nullity. After referring to R v Ayres, Templeman J (Wheeler and Miller JJ agreeing) concluded (at 545 [22]-[23]) that it was intended to charge “a known and subsisting criminal offence; that is to say, the offence of sexual penetration without consent, which was pleaded in the indictment in terms which were incomplete or otherwise imperfect”. The proviso could be applied in those circumstances.

87   The decisions in R v Ayres and Kahatapitiye v R were referred to by this Court in Chanthaboury v R, where it was accepted that the relevant Court Attendance Notice contained an error, in that it described an offence of accessory after the fact to robbery, and not attempted robbery. McClellan CJ at CL (Barr and Bergin JJ agreeing) referred, without criticism, to the distinction between nullity and mere defect in R v Ayres, and the application of this principle in Kahatapitiye v R.

88   In Boujaoude v R, the indictment alleged an offence of supplying not less than a commercial quantity of a prohibited drug (heroin), but the quantity specified fell far below the commercial quantity for that drug. Giles JA (Hislop and Price JJ agreeing), at 92-95 [38]-[49], applied R v Ayres and Kahatapitiye v R. The indictment was held to be valid, “although defectively particularised” (at 94 [45]).

89   In Doja v R, the appellant was convicted of several offences under s.178BB Crimes Act 1900, two of which failed to allege the relevant mental element, in that they did not include any reference to the “knowledge” of the appellant or his alleged “reckless disregard” of the truth of the statement made. McClellan CJ at CL (Grove J agreeing), observed (at 365-366 [104]-[105]) that the omissions were plainly an oversight which were not appreciated by the Judge or counsel at trial.

90   The Chief Judge at Common Law concluded (at 372 [130]) that the indictment in that case was not invalid or the proceedings a nullity. The indictment could have been amended during the course of the trial. His Honour held that the verdicts cured the defects in the indictment. In any event, his Honour held (at 372-375 [131]-[144]), referring to R v Ayres and Kahatapitiye v R, that the proviso could be applied in that case.

91   McClellan CJ at CL (Grove J agreeing) said at 377-378 [158]-[159] [extracted above] …

92   In Park v R [2010] NSWCCA 151; 202 A Crim R 133, McClellan CJ at CL (James J agreeing) accepted (at 142 [41]) in the context of a complaint concerning a charge of attempted murder, that at worst, there had been an imperfect formulation of a known offence - it would be “imperfect rather than defective”. Even if his Honour had concluded that the indictment was defective, it was not one which deprived the Court of jurisdiction (at 143 [48]).

93   In Area Concrete Pumping Pty Limited v Inspector Childs [2012] NSWCA 208; 232 IR 86, Bathurst CJ (Basten JA, in separate reasons, and Hoeben JA agreeing), at 103 [49], applied R v Boujaoude in stating that “even an inadequately described offence will not necessarily render the offence unknown to law such that jurisdiction is lost and amendment provisions cannot operate”.

70. An example of a case where the defect was such as to deprive the court of jurisdiction can be found in Built. Built was an appeal pursuant to s 5C of the Criminal Appeal Act against an order in the District Court dismissing two summonses against Built NSW Pty Ltd alleging contraventions of s 8(2) of the Occupational Health and Safety Act 2000 (NSW). The appeal was brought in the context of summary proceedings, as was the case in Rockdale Beef Pty Ltd v The Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 (Rockdale Beef), to which the decision refers. The principles in Rockdale Beef (and by necessary implication, those in Built) were found by the majority in Doja to be “of more general application”.

71. The first summons was in the following terms (with the second summons being in the same terms but naming a different individual in relation to the alleged contraventions):

Built NSW Pty Limited … being an employer, on 27 May 2010, at 401-411 Sussex Street, Haymarket in the State of New South Wales (‘the site’) failed by its acts and/or omissions particularised in Annexure A (attached) to ensure the health, safety and welfare at work of persons other than its employees, and in particular Jamie Zonno and Joshua Ziminez contrary to section 8(2) of the Occupational Health and Safety Act 2000.

72. Bathurst CJ (Beazley P and Hoeben CJ at CL agreeing) held that the offence disclosed in the summonses was not known to law, and therefore the summonses were not saved by s 16(2) of the Criminal Procedure Act, nor were they capable of amendment pursuant to s 21 of the Criminal Procedure Act. His Honour observed, at [138], that it was “not a case where what has occurred is that an essential element has been left out which can be cured without procedural unfairness to the defendant: Rockdale Beef”, nor, at [142], a case in which there may have been “some slip or clumsiness which upon a strict analysis results in an ingredient of the offence not being the subject of a proper averment”, citing Broome v Chenoweth (1946) 73 CLR 583 at 601; [1946] HCA 53.

73. Bathurst CJ said (at [138]-[143]):

138   The summonses thus do not, in my opinion, disclose offences known to law. It is not a case where what has occurred is that an essential element has been left out which can be cured without procedural unfairness to the defendant: Rockdale Beef supra at [123]. Rather on its face, although expressed to be brought under s 8(2) of the OH&S Act, it pleaded the elements of an offence under s 8(1) of that Act which had no application to Messrs Zonno and Jiminez because as stated in the summons they were not employees of the respondent.

139 The particulars do assert that Messrs Zonno and Jiminez were exposed to risk of injury and to that extent meets the requirements of s 8(2) of the OH&S Act. However, the acts and omissions particularised against the respondent are equally applicable to a charge under s 8(1) as to a charge under s 8(2) of the OH&S Act. The same analysis also applies in relation to the second summons concerning Mr Pulver.

140 In these circumstances it seems to me that the deficiencies are so great that they do not plead a charge known to law as distinct from merely omitting or mispleading an essential element of the charge which could be cured by amendment or further particularisation. It follows that I do not think that the defects are ones to which s 16(2) of the CPA applies, nor ones which could be cured by amendment consistent with the authorities to which I have referred above.

141   I appreciate that as was stated in R v Boujaoude [2008] NSWCCA 35; (2008) 72 NSWLR 85 at [45], an indictment will not be a nullity if however misparticularised, it discloses an offence known to law. However, in the present case when each summons alleges one offence and does not plead the necessary elements but pleads matters relevant to a different offence, it does not seem to me that this approach can be adopted.

142   Further, I do not think this is case such as that considered by Dixon J in Broome v Chenoweth (1946) 73 CLR 583 at 601, where an offence is clearly indicated but in its statement there may be some slip or clumsiness which upon a strict analysis results in an ingredient of the offence not being the subject of a proper averment. For the reasons I have indicated, in my opinion, the defects in this case fall outside any such slip or clumsiness.

143 In these circumstances, in my opinion, each summons discloses no offence known to law and are not saved by s 16(2) of the CPA, nor are they capable of amendment pursuant to s 21 of the CPA.

74. While Built does assist in setting an outer limit as to what will or will not constitute a valid statement of a charge, it is also helpful to contrast the circumstances that pertained there with the present case. In Built it was not apparent which of the multiple offences under the relevant act was intended to be charged. Here, there was no such lack of clarity.

75. In the present case it was clear that the appellants were charged with offences against s 105(2) of the Act. Each charge alleged the relevant appellant either did “publish” or “broadcast” the name of a relevant child (that is, a child to whom s 105(1)(b) applied). The only complaint raised by the appellants is that the charges did not include the words “in any form that may be accessible by a person in New South Wales”. These are not words taken from s 105(2) which creates the offence. Rather, those words are from s 105(1)(b) and are, in effect, definitional, in the sense they give meaning to “publish” or “broadcast” for the purposes of the offence provision. Further, insofar as the words are definitional, they are one dimensional and can, in this regard, be contrasted with the multifactorial definitions with which this Court was concerned in Lodhi. (It is, additionally, not to be forgotten in this context that Lodhi was concerned with whether the indictment was defective, not with whether it was sufficient to found jurisdiction.) Having regard to the simple nature of the offence, and what was necessarily required to establish publishing or broadcasting (that is, that it was done in a form accessible by a person in New South Wales), the present was a case where there can have been “no misunderstanding as to the basis upon which the Crown asserted that the offences” were committed: Doja at [160]. Indeed, there is considerable force in the Crown’s primary submission in the Court below that there was no defect because it was clear from the indictment that the publication or broadcast had to be in a “form that may be accessible by a person in New South Wales”. This submission appears to have been based on s 16(1)(b) of the Criminal Procedure Act, which relevantly provides that an indictment is not “bad, insufficient, void, erroneous or defective … for want of an averment of any matter … necessarily implied”.

76. We are of the view that the indictment, in the form it was in prior to amendment, was sufficient to invoke the jurisdiction of the District Court.

77. Accepting the District Court was properly invested with jurisdiction, the next (albeit related) question was whether the indictment, as originally presented, could be amended “without injustice”. As Mr Burton drew the trial judge’s attention to the defect in the original indictment and the amendment did not require any further evidence to be adduced either by the Crown or by Mr Burton and would not have altered the course of the evidence, there was no arguable prejudice.

78. Accordingly, the amendment was properly made. The original indictment, though found to be defective prior to the amendment being allowed, was not a nullity. For these reasons, neither ground 1 nor ground 2 has been made out.

79. We note that, in respect of grounds 3-6, Mr Burton has repeated the allegation that the indictment was invalid. As this submission has been rejected in the consideration of grounds 1-2, it need not be revisited.

Ground 3: alleged failure to leave alleged defences to the jury

80. The appellants submitted at trial that the trial judge ought leave the following defences to the jury: self-defence, necessity, duress and honest and reasonable mistake of fact. As referred to above, the trial judge ruled that none of these defences arose and that therefore the jury would not be directed about any of these defences. There is no challenge to the trial judge not leaving duress to the jury but Mr Burton challenges her Honour’s decision not to leave the other defences to the jury.

The relevant principles

81. In Huynh v The Queen [2013] HCA 6; (2013) 295 ALR 624, the High Court held at [31] that:

The contention that it is an error of law for a trial judge to omit to instruct a jury on all of the elements of liability for an offence cannot stand with the many decisions of this Court affirming the statement of the responsibility of the trial judge in Alford v Magee [(1952) 85 CLR 437; [1952] HCA 3]. The duty is to decide what the real issues in the case are and to direct the jury on only so much of the law as they need to know to guide them to a decision on those issues.

82. The prosecution has an onus to negative all defences sufficiently raised: King v The Queen (2003) 215 CLR 150; [2003] HCA 42 at [52] (Gummow, Callinan and Heydon JJ).

83. In Braysich v The Queen (2011) 243 CLR 434; [2011] HCA 14 (Braysich) at [32], French CJ, Crennan and Kiefel JJ said, citing Fingleton v The Queen (2005) 227 CLR 166; [2005] HCA 34 at [83] (McHugh J):

The authority and responsibility of the judge to instruct the jury on questions of law requires the judge “to put to the jury every lawfully available defence open to the accused on the evidence even if the accused’s counsel has not put that defence and even if counsel has expressly abandoned it”.

84. The High Court in Braysich articulated the relevant test at [36] as follows:

If a trial judge has to consider whether, at the close of the evidence in a criminal trial, a particular defence should be left to the jury, the question which the trial judge will have to ask himself or herself will be: 

1.   In a case where the legal burden is on the prosecution and the evidential burden on the accused – is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence had been negatived?

2.   In a case in which both the legal burden and the evidential burden rest upon the accused – is there evidence which, taken at its highest in favour of the accused, could lead a reasonable jury, properly instructed, to conclude on the balance of probabilities that the defence had been established?

(Footnotes omitted.)

85. Each of the defences raised by the appellants in support of their grounds of appeal will be addressed in turn.

Self-defence

86. Mr Burton relied on s 418 of the Crimes Act, which relevantly provides:

418   Self-defence—when available

(1)     A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.

(2)     A person carries out conduct in self-defence if and only if the person believes the conduct is necessary—

(a)     to defend himself or herself or another person, or

(b)     to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person …

and the conduct is a reasonable response in the circumstances as he or she perceives them.

87. This Court (Adams J, Hislop J and Newman AJ) articulated the relevant test by reference to self-defence in R v Burgess; R v Saunders [2005] NSWCCA 52; (2005) 152 A Crim R 100 at [23]:

It is not controversial that, if there is evidence capable of establishing the reasonable possibility that both limbs of the test prescribed in s418 might be satisfied, namely the subjective belief of the accused about the existence of the threat and the objective reasonableness of their response, then the defence must be left to the jury to consider. The defence will then have been raised in the relevant sense.

88. It follows that Mr Burton had an evidential burden in relation to the propositions that:

1. he believed that the publication/broadcast of the name of CWS was necessary to defend CWS or terminate the unlawful deprivation of his liberty; and

2. his conduct in publishing/broadcasting the name of CWS was a reasonable response in the circumstances as he perceived them.

89. The first matter is subjective, albeit that where unlawful deprivation of liberty pursuant to s 418(2)(b) is relied on, the deprivation of liberty must be unlawful (and not just believed to be so). The second matter is to be assessed objectively: see Oblach v R (2005) 65 NSWLR 75; [2005] NSWCCA 440 at [59]. In order to discharge these evidential burdens it was necessary that Mr Burton adduce or point to evidence that suggested those matters as a reasonable possibility.

90. The chronology set out above indicates that CWS was taken into the care of FACS on 19 May 2017. The first post in respect of which he has been charged was dated 4 July 2017. The posts which were the subject of charges make wide-ranging complaints about several topics which extend beyond CWS.

91. The evidence adduced, taken at its highest, was manifestly insufficient to cause a reasonable jury, properly instructed, to have a reasonable doubt that each of the elements of the defence of self-defence had been negatived by the prosecution. Insofar as the appellants may have had a subjective belief that CWS had been kidnapped and thus unlawfully deprived of his liberty, this was not sufficient to discharge the evidentiary burden with respect to s 418(2)(b). There was no evidence CWS had been unlawfully detained.

92. Insofar as the appellants sought to rely on s 418(2)(a), no tenable connection between the publication/broadcast of CWS’s full name and any need to “defend” him is evident from the evidence. Even if it could be assumed the appellants held the necessary subjective belief (which may be doubted), there is no basis on which the response could be said to have been a reasonable response to the circumstances as they perceived them. We are not persuaded that any error has been shown in the trial judge’s ruling that she would not leave the defence of self-defence to the jury.

Necessity

93. The defence of necessity is confined to circumstances where there is a threat of death or serious injury that cannot otherwise be avoided and the only way for the accused to avoid that death or serious injury was to disobey the law: Veira v Cook [2021] NSWCA 302; (2021) 293 A Crim R 569. This Court in Veira v Cook held that the applicant was not entitled to respond to threatened harm based on their own value judgment as to how that harm may be weighed against harm involved in their unlawful conduct.

94. In Rogers v R (1996) 86 A Crim R 542, Gleeson CJ said of the defence of necessity at 546:

The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed.

This is why, historically, it has been regarded as important to seek to limit the scope of the defence by referring to requirements such as urgency and immediacy. However, I accept the appellant’s submission that, consistently with the approach to self-defence taken by the High Court in Zecevic [Zecevic v DPP (Vic) (1987) 162 CLR 645; [1987] HCA 26], it is now more appropriate to treat those “requirements”, not as technical legal conditions for the existence of necessity, but as factual considerations relevant, and often critically relevant, to the issues of an accused person’s belief as to the position in which he or she is placed, and as to the reasonableness and proportionality of the response.

(Emphasis added.)

95. In the present case, the question for the trial judge was whether the evidence raised as a reasonable possibility that Mr Burton believed, on reasonable grounds, that publishing/broadcasting CWS’s full name was the only way of protecting CWS from death or serious injury; that his conduct was a reasonable response to the danger; and that publishing/broadcasting CWS’s full name was necessary to protect CWS.

96. Given the lack of logical connection between publishing/broadcasting CWS’s full name and protecting him from death or serious injury, there was no proper evidentiary basis on which to leave the defence of necessity to the jury.

Honest and reasonable mistake of fact

97. The trial judge held that the defence of honest and reasonable mistake of fact was available in respect of a charge pursuant to s 105(2) of the Act. A mistake of fact will only provide a complete defence to a charge if the fact, if true, would render the accused innocent of any criminal offence: Bell v State of Tasmania (2021) 274 CLR 414; [2021] HCA 42 (following Bergin v Stack (1953) 88 CLR 248; [1953] HCA 53) at [12]-[13] (Kiefel CJ and Keane J); [31] (Gageler J); [46] (Gordon and Steward JJ); and [93] (Edelman and Gleeson JJ).

98. In this Court Mr Burton submitted that he honestly and reasonably believed that either the Children’s Court or the Secretary had consented to the full name of CWS being published: s 105(3)(b)(i) and (iii) of the Act. He alleged that several media outlets had published and broadcast CWS’s name in full and that, in those circumstances, he was entitled to, and did, reasonably believe that consent had been given, thereby rendering the publication or broadcast of CWS’s name lawful.

99. These submissions were not reflected in the oral evidence Mr Burton gave at trial or the correspondence he sent at the relevant time. In his correspondence (as set out above), Mr Burton exhibited a blatant disregard for the law, which he criticised in strong terms. He positively invited prosecution by acting in contumelious disregard of s 105 of the Act, in circumstances where the consequences of publishing or broadcasting CWS’s name had been pointed out to him in unequivocal terms by FACS.

100. The only other basis raised was that Mr Burton believed that CWS was dead. Had CWS died, the prohibition against publication or broadcast in s 105 of the Act would no longer have applied: s 105(3)(b)(iv) of the Act. However, in his evidence, Mr Burton said that he thought that CWS “could be dead” and was “hopeful that he wasn’t”. This evidence did not rise as high as saying that Mr Burton believed that CWS was dead.

101. Taking Mr Burton’s evidence at its highest, there was no basis for the trial judge to leave the defence of honest and reasonable mistake of fact to the jury.

102. For the reasons given above, ground 3 has not been made out.

Ground 4: alleged error in instructing the jury that it did not matter whether the offending posts were eventually deleted from Facebook

103. The jury note to which this direction was responsive is referred to above.

104. Mr Burton submitted that he removed the posts on 13 July 2017 (the Crown disputed this proposition at trial) and that he was therefore entitled to be acquitted on the basis that he had abided by a warning and had complied with the law. The factual issues concerning this submission need not be explored.

105. The offence under s 105(2) of the Act is complete at the time of publication or broadcast. Accordingly, whether the publication is removed or the broadcast deleted is irrelevant to whether an offence under s 105(2) has been committed. While an offender’s conduct after the commission of the offence may bear on matters relevant to sentencing (remorse, contrition, prospects of re-offending and the like), it does not bear on whether the commission of the offence has been established.

106. No error has been shown. The trial judge’s answers to the questions posed were correct. The ground has not been made out.

Ground 5: alleged error in failing to tell the jury that time was an essential element and directing the jury that they needed to find only that the posts were on or around the times charged

107. At 4.56am on 13 November 2024, the day on which the summing up was due to commence, Mr Burton sent an email to the trial judge and to the prosecutor in which he submitted that time was of the essence and that, accordingly, the Crown had to prove the precise date of each of the posts. This was raised on 13 November 2024 in the absence of the jury. Her Honour rejected his submission and said, in the course of exchanges with Mr Burton:

… the date the Crown have proved is 24 May when the proceedings were filed or commenced in the Children’s Court and all of these posts were about six weeks later. … There are dates in the indictment and you’ve admitted to having post[ed] them on or about those dates. So the jury do not need to be satisfied beyond reasonable doubt of the precise date.

108. In the present case, the date which was essential was the date on which the proceedings in the Children’s Court were filed, which was 24 May 2017. The Facebook posts post-dated that date. The evidence summarised in the table above accords generally (within a day or two) with the dates of publication or broadcast alleged by the Crown in the indictment. In these circumstances, no error has been shown in the trial judge’s orthodox directions to the jury, which complied with the law. This ground has not been made out.

Ground 6: alleged failure to dismiss the matter when the evidence showed that nothing the appellant was alleged to have done had any impact on the privacy or identity of the child or caused the child stigma, that is s 105 was being used for an improper purpose

109. In support of ground 6, Mr Burton submitted that the prosecution was brought for an improper purpose because the prosecution had not shown that the privacy of the child was affected by the charged conduct or that the child suffered any stigma as a result.

110. It is not an element of an offence under s 105(2) of the Act that the Crown prove harm to the child concerned or that the child’s privacy was affected. Thus, the presence or absence of either of these matters could have no bearing on whether the offences charged had been committed. These matters, even had they been established, provided no proper basis on which the trial judge could have dismissed the indictment.

111. This ground has not been made out.

Ground 7: alleged failure to allow Mr Katelaris to inform the jury of its power to give a verdict against the statute law, if strongly directed by their conscience, in a particular case

112. This ground was relied upon by Mr Katelaris. We did not discern that it was also relied upon by Mr Burton but if we are incorrect as to this matter, our reasons for rejecting this ground apply equally to him.

113. While the Crown may appeal against a directed verdict of acquittal under s 107 of the Crimes (Appeal and Review) Act 2001 (NSW), it has no right of appeal against a conviction ordered following a jury’s verdict of not guilty. Thus, a jury is entitled to return a verdict of not guilty on a perverse basis (namely a basis which does not accord with the law) in the sense that the Crown cannot appeal from such a verdict. By contrast, if a jury’s verdict of guilty is unreasonable, the offender may appeal to this Court on the ground that the verdict is unreasonable: s 6(1) of the Criminal Appeal Act.

114. However, it does not follow from the circumstance that a jury may return a verdict which does not accord with the law that a trial judge ought lend force to a submission that a jury may return a verdict otherwise than in accordance with the law. Indeed, the purpose of directions given by a trial judge to a jury is to ensure that the jury complies with the law when deliberating and returning a verdict. The assumption is made, unless the contrary is demonstrated, that the jury applies and acts in accordance with the trial judge’s directions: Demirok v The Queen (1977) 137 CLR 20 at 22 (Barwick CJ); [1977] HCA 21. The role of the jury is to be the tribunal of fact (see The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65] (French CJ, Kiefel, Bell, Keane and Gordon JJ)) and the role of the trial judge is to be the tribunal of law. Where counsel or a litigant in person misstates the law, the trial judge is entitled, and generally obliged, to rectify the misstatement, either by inviting the person who made the misstatement to withdraw it in front of the jury or by a direction, or both.

115. Mr Katelaris’ closing submission to the jury amounted to a submission that the law was wrong and that, because it was wrong, the jury did not need to apply it to him and that they should, accordingly, acquit him. The trial judge did not require him to withdraw the submission. Accordingly, the ground, in terms, has not been made out since Mr Katelaris made the very submission which he alleges in ground 7 he was not permitted to make. But if, as we apprehend, the gravamen of Mr Katelaris’ submission is that the trial judge was not entitled to direct the jury that they were bound to apply the law and to act on the evidence before them in coming to a verdict, it must be rejected.

116. Ground 7 has not been made out.

Leave to appeal

117. As referred to above, leave to appeal is not required in respect of grounds 1, 2 or 7. However, we are disposed to grant leave in respect of the remaining grounds, in the interests of finality.

Proposed orders

118. For the reasons given above, we make the following orders:

In proceedings 2017/387583:

1. Grant leave to appeal on grounds 3, 4, 5 and 6.

2. Dismiss the appeal.

In proceedings 2017/388124:

1. Grant leave to appeal on grounds 3, 4, 5 and 6.

2. Dismiss the appeal.

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Decision last updated: 10 June 2025