Commissioner of Police, NSW Police Force v TM

Case •

[2023] NSWCA 75

•

24 April 2023

No judgment structure available for this case.

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Commissioner of Police, NSW Police Force v TM [2023] NSWCA 75
Hearing dates: 1 November 2022
Date of orders: 24 April 2023
Decision date: 24 April 2023
Before: Ward P at [1]
Kirk JA at [2]
Simpson AJA at [3]
Decision:

1. Leave to appeal granted;

2. Appeal allowed;

3. The orders of the Supreme Court of 25 March 2022 (as varied on 8 April 2022) set aside;

4. In lieu thereof, the amended summons filed in the Supreme Court on 23 August 2021 dismissed.

Catchwords:

CRIME – appeal and review – juvenile offender convicted of three counts of possession of child abuse material under Crimes Act 1900 (NSW) s 91H(2) – whether offender a “registrable person” under s 3A of the Child Protection (Offenders Registration) Act 2000 (NSW) – whether exception under s 3A(2)(c)(ii) applies – meaning of “arising from the same incident” – interaction of s 3(3) and s 3A(5) – whether possession of child abuse material is an offence “committed against” a person – primary judge erred in “disapplying” s 3(3) to s 3A(5)

STATUTORY INTERPRETATION – departure from literal meaning by primary judge – inadvertence by legislature – desire to avoid “incoherent results” – that a provision has unfair results an insufficient justification for entirely refusing to apply statutory text – limited qualification on operation of provision sufficient to avoid incoherence

STATUTORY INTERPRETATION – amendment and repeal – references to amended or repealed statute – Interpretation Act 1987 (NSW) s 68 – reference in earlier version of Child Protection (Offenders Registration) Act 2000 (NSW) s 3A(2)(c)(ii) to Crimes Act 1900 (NSW) s 578B – Crimes Act s 91H and s 578B (repealed) are corresponding provisions for the purposes of Interpretation Act s 68(3)

Legislation Cited:

Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) ss 4, 5, 6, 7

Child Protection (Offenders Registration) Act 2000 (NSW) ss 2A, 3, 3A, 4, 5, 7, 8, 9, 10, 11, 14A, 14B, 17, 19

Children (Criminal Proceedings) Act 1987 (NSW) s 33

Classification (Publication, Films and Computer Games Act 1995 (Cth)

Crimes Act 1900 (NSW) ss 91FB, 91H, 578B

Child Protection (Offenders Registration) Amendment (Statutory Review) Act 2014 (NSW)

Crimes Amendment (Child Pornography and Abuse Material) Act 2010 (NSW)

Crimes Amendment (Child Pornography) Act 2004 (NSW)

Crimes(Sentencing Procedure) Act 1999 (NSW) s 10

Interpretation Act 1987 (NSW) ss 8, 68

Supreme Court Act 1970 (NSW) ss 69, 75, 101

Cases Cited:

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26

Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12

TM v Commissioner of NSW Police [2022] NSWSC 337

State of New South Wales v Kaiser [2022] NSWCA 86

Taylor v Owners – Strata Plan 11564 (2014) 253 CLR 531; [2014] HCA 9

Whiley v R [2010] NSWCCA 53

Woolworths Ltd v Lister [2004] NSWCA 292

Category:Principal judgment
Parties: Commissioner of Police, NSW Police Force (Applicant)
TM (First Respondent)
Local Court of New South Wales (Second Respondent)
Representation:

Counsel:
Dr D Kell SC/J Davidson/A Sapienza (Applicant)
P Coady/A Bhasin (First Respondent)

Solicitors:
Crown Solicitor’s Office (Applicant)
Legal Aid NSW (First Respondent)
Submitting Appearance (Second Respondent)
File Number(s): 2022/112930
 Decision under appeal 
Court or tribunal:
Supreme Court of NSW
Jurisdiction:
Civil
Citation:

[2022] NSWSC 337

Date of Decision:
8 April 2022
Before:
N Adams J

HEADNOTE

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

On 18 November 2013, TM, the first respondent, was found to be in possession of three electronic devices, each of which contained child abuse material. Possession of each device constituted an offence against s 91H of the Crimes Act 1900 (NSW). Section 91H creates offences of producing, disseminating or possessing child abuse material (as defined in s 91FB). An offence against s 91H is, by s 3 of the Child Protection (Offenders Registration) Act 2000 (NSW) (“the CPOR Act”) a “registrable offence”. On 26 May 2014, TM entered pleas of guilty to three counts of offences against s 91H. He was ordered to enter into a bond to be of good behaviour.

Subject to certain exceptions, a person sentenced in respect of a registrable offence is, by s 3A(1) of the CPOR Act, a registrable person. By s 3A(2)(c)(ii), a person who as a child committed a single offence against s 91H is excepted from s 3A(1). By s 3A(5), a reference to a single offence is extended to include “more than one offence of the same kind arising from the same incident”. Section 3(3) of the CPOR Act provides that, for the purposes of that Act, offences “arise from the same incident” only if they are committed within a single period of 24 hours and are committed against the same person. At the date of the offending, the respondent was aged seventeen. He was thus, for the purposes of the CPOR Act, a child.

On 24 November 2016, TM’s name was entered onto the Child Protection Register maintained under s 19 of the CPOR Act.

TM applied to the Supreme Court, seeking declaratory and other orders under ss 69 and 75 of the Supreme Court Act 1970 (NSW) to the effect that the entry of his name on the Child Protection Register was erroneous, and that decisions subsequently made in reliance on that entry be quashed. He contended that he was not a “registrable person” under s 3A(1) of the CPOR Act due to the operation of s 3A(2)(c)(ii) (as explained by s 3A(5) and s 3(3)).

The primary judge concluded that s 3(3) of the CPOR Act did not apply to s 3A(2)(c)(ii), where the offences in question were “possession offences” contrary to s 91H. On 25 March 2022, the primary judge made a declaration and orders essentially as sought by TM. The orders were varied, by consent, on 8 April 2022. The Commissioner for Police, the applicant, sought leave to appeal.

The primary issue on appeal was the proper construction of s 3(3) and its interaction with ss 3A(2)(c)(ii) and 3A(5) of the CPOR Act. A subsidiary issue, not addressed at first instance, concerned the terms of s 3A(2)(c)(ii), which, at all times relevant to the appeal, was expressed to apply to offences against s 578B of the Crimes Act, a provision which was no longer in force, rather than s 91H. The parties, invoking s 68(3) of the Interpretation Act 1987 (NSW), agreed that the reference in s 3A(2)(c)(ii) to s 578B of the Crimes Act ought to be taken as a reference to s 91H.

The Court (Simpson AJA, Ward P and Kirk JA agreeing) held, granting leave to appeal, allowing the appeal:

  1. Section 91H of the Crimes Act, as it existed at the date of the offences and the date of sentencing, was a “corresponding provision” of s 578B of the Crimes Act for the purposes of s 68(3) of the Interpretation Act. The reference in s 3A(2)(c)(ii) (as in force at the relevant times) to s 578B should be taken as a reference to s 91H: [1] (Ward P), [2] (Kirk JA), [82] (Simpson AJA).

Woolworths Ltd v Lister [2004] NSWCA 292, applied.

  1. There is no incoherence in the application of s 3(3) of the CPOR Act to s 3A(2)(c)(ii). Although it might produce some incongruous and even unfair results, the clear intention of the legislature was, by s 3(3), to except from the operation of s 3A(1) juvenile offenders who commit multiple offences arising from the same incident, provided they are committed within a single period of 24 hours and (if committed against a person) are committed against the same person: [1] (Ward P), [2] (Kirk JA), [95], [104] (Simpson AJA).

Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26, applied.

  1. Where offences are not “committed against” a person, s 3(3) of the CPOR Act is satisfied upon proof that the offences are committed within a single period of 24 hours. Proof of the second limb of s 3(3) (that the offences are “committed against the same person”) is unnecessary: [1] (Ward P), [2] (Kirk JA), [105], [106] (Simpson AJA).

  2. Possession of child abuse material involving an actual child or actual children is an offence which is “committed against” the child or children depicted or described, for the purposes of s 3(3) of the CPOR Act: [1] (Ward P), [2] (Kirk JA), [108], [109] (Simpson AJA).

  3. The respondent’s offences were not committed “against the same person”. His offences did not arise from the same incident, (as that phrase is defined in s 3(3) of the CPOR Act) and he was not entitled to the benefit of the s 3A(2)(c)(ii) exception to s 3A(1) of the CPOR Act. He was, therefore, a registrable person under s 3A(1), and subject to the consequences of that status: [1] (Ward P), [2] (Kirk JA), [110] (Simpson AJA).

JUDGMENT

  1. WARD P: I agree with Simpson AJA.

  2. KIRK JA: I agree with Simpson AJA.

  3. SIMPSON AJA: This application for leave to appeal raises an issue concerning the proper construction (or application) of one provision of the Child Protection (Offenders Registration) Act 2000 (NSW) (“the CPOR Act”), specifically s 3(3) thereof. The construction issue arises in circumstances to be more fully explained below. At this point it is sufficient to say that, on 18 November 2013, when he was 17 years of age (and, for the purposes of the CPOR Act, a child) the first respondent, TM, was found to be in possession of three electronic devices, each of which contained child abuse material. Possession of each device constituted an offence against s 91H of the Crimes Act 1900 (NSW). On 26 May 2014, TM entered a plea of guilty to each of three counts of offences against s 91H. Pursuant to s 33(1)(b) of the Children (Criminal Proceedings) Act 1987 (NSW) he was ordered to enter into a bond to be of good behaviour for 14 months. On 24 November 2016, his name was entered on the Child Protection Register maintained under s 19 of the CPOR Act.

  4. Entry of TM’s name on the Child Protection Register had statutory and other consequences that will be outlined below, including reporting obligations, a breach of which, by s 17 of the CPOR Act, constitutes an offence.

  5. On 21 July 2021 TM sought declaratory and other orders pursuant to ss 69 and 75 of the Supreme Court Act 1970 (NSW). On 25 March 2022 in the Common Law Division of the Supreme Court, N Adams J (“the primary judge”) made a declaration the effect of which was that the entry of TM’s name on the Child Protection Register was erroneous, and ordered that decisions subsequently made in reliance on that entry be quashed: TM v Commissioner of NSW Police [2022] NSWSC 337.

  6. The applicant, the Commissioner of Police (“the Commissioner”), seeks leave to appeal against the declaration and orders. Leave is required by s 101(2)(r) of the Supreme Court Act because the amount in issue does not exceed $100,000. (There is, in fact, no monetary amount in issue.)

  7. The Local Court of New South Wales is named as the second respondent and has filed a submitting appearance. As TM is the only active respondent it is convenient to refer to him as “the respondent”.

  8. The President directed that the application for leave to appeal be heard concurrently with the appeal in the event that leave were granted. Although initially the respondent opposed the grant of leave, by the time of the hearing he realistically accepted that the issues involved are such as to justify a grant of leave, and, appropriately, withdrew his opposition.

  9. Leave to appeal should be granted and the matter proceed as an appeal.

  10. To explain the appeal it is necessary to begin with the relevant statutory provisions.

The statutory context

  1. The long title of the CPOR Act is:

“An Act with respect to registration and reporting requirements for certain offenders who commit sexual and other serious offences against children; and for other purposes.”

  1. The objects of the CPOR Act are stated in s 2A thereof, as follows:

“(a)   to protect children from serious harm (including physical and psychological harm caused by physical or sexual assault), and

(b)   to ensure the early detection of offences by recidivist child sex offenders, and

(c)   to monitor persons who are registrable persons, and

(d)   to ensure that registrable persons comply with this Act.”

  1. To facilitate the achievement of those objects the CPOR Act requires the Commissioner to establish and maintain a Child Protection Register which is to contain certain specified details about each “registrable person” on the Register (s 19). “A registrable person” is defined in s 3A(1) as:

“…a person whom a court has at any time (whether before, on or after the commencement of this section) sentenced in respect of a registrable offence, and includes a corresponding registrable person.”

(A “corresponding registrable person” is defined in s 19BB, essentially, as a person subject to requirements of a foreign jurisdiction corresponding or analogous to the requirements of the CPOR Act. Although the term appears from time to time in the provisions of the CPOR Act discussed below, it has, for present purposes, no further relevance).

  1. Section 3 of the CPOR Act defines terms used in the CPOR Act. A “registrable offence” is defined as:

“…an offence that is ---

(a)   a Class 1 offence, or

(b)   a Class 2 offence, or

(c)   an offence that results in the making of a child protection registration order.”

Class 1 and Class 2 offences are itemised in s 3 by reference to the statutory provisions that create the offences. Generally speaking, Class 1 offences are those regarded as more serious, carrying higher penalties, and Class 2 offences are of lesser seriousness. In the third category of registrable offence (offences that result in the making of a child protection registration order) are offences that do not fall within the lists of Class 1 or Class 2 offences but in respect of which a court may, in circumstances prescribed by ss 3D and 3E, order that the offender comply with the reporting obligations of the CPOR Act (as to which, see below).

  1. It will be seen that the CPOR Act operates of its own force to render an offender a “registrable person”. That is, an offender who has been sentenced in respect of a registrable offence becomes, by operation of s 3A(1) and without further intervention by a court, a “registrable person”. By s 3C(1), a court that sentences a person for a sexual offence committed when the person was a child may make an order declaring that the person is not to be treated as a registrable person for the purposes of the CPOR Act in respect of that offence. (Section 3C was introduced into the CPOR Act in 2018 with effect from 1 December 2018, and was not in force at the time relevant to this appeal).

  2. Classification of an offender as a “registrable person” carries certain consequences. A registrable person is obliged to report annually his or her “relevant personal information” to the Commissioner (s 10(1)). The initial report must be made within the time specified in s 9A(1), which is generally determined by whether the offender is in custody. The content of the “relevant personal information” that must be reported is spelled out in s 9, and includes any name by which the person is or has been known, the person’s date of birth, the address at which the person generally resides, the name and date of birth of each child who generally resides in the same household, the nature of the person’s work (if any), the name of the person’s employer and the address of each of the premises at which the person generally works, details of the person’s affiliation to any club that has child membership or child participation in its activities, motor vehicle details, details of tattoos and permanent distinguishing marks, and details of any “government custody” in which the person has been held since sentencing for the registrable offence. By s 11(1), the registrable person is obliged to report to the Commissioner, within a specified time, any change in his or her relevant personal information.

  3. By s 17(1) it is an offence, punishable by the imposition of a monetary penalty and/or imprisonment for 5 years, for a registrable person to fail, without reasonable excuse, to comply with the s 10 reporting obligations.

  4. By s 4, a sentencing court is required, as soon as practicable after sentencing a registrable person:

  1. to give the person written notice of his or her reporting obligations and the consequences of failure to comply with those obligations (subs (1)); and

  2. to give written notice of the fact of sentencing to the Commissioner and the “supervising authority” for the person (subs (2)).

(The “supervising authority” is defined in s 3 as an authority prescribed by the regulations as the authority having control of the person).

  1. By s 5(1), as soon as practicable after a registrable person commences a “supervised sentence” for a registrable offence, the supervising authority for that person is to give written notice to the person of his or her reporting obligations and the consequences of failure to comply with those obligations. A “supervised sentence” is, essentially, a sentence to be served other than in custody, but under supervision (s 3).

  2. By s 7, if the Commissioner suspects that a registrable person may not have received notice or may otherwise be unaware of the reporting obligations imposed by the CPOR Act, or the consequences of failure to comply, he or she may (but is not obliged to) cause written notice to be given to the registrable person of those obligations and the consequences of any failure to comply.

  3. Sections 4, 5 and 7 are located in Div 1 (“Notices to be given”) of Pt 3 (“Reporting obligations”) of the CPOR Act. By s 8, failure (by the sentencing court or the supervising authority) to comply with the requirements of Div 1 does not affect a registrable person’s reporting obligations. Thus, a registrable person is obliged to comply with the reporting obligations whether or not that person has been given the written notices required by s 4(1) and s 5(1) by the sentencing court or the supervising authority, or a s 7 notice by the Commissioner.

  4. The period during which a registrable person is required to report is stated in s 14A(1), and escalates according to the seriousness of the offence giving rise to the person’s classification as a “registrable person”. For example, a person found guilty of a single Class 2 offence is obliged to report for 8 years; a person found guilty of a single Class 1 offence, or of more than a single registrable offence, is obliged to report for 15 years (unless otherwise liable to report for life); and a person subsequently found guilty of certain further offences is obliged to report for the remainder of his or her life (subject to any exemption that may, pursuant to s 16, be granted by the Civil and Administrative Tribunal of New South Wales). By subs (4)(a) of s 14A, for the purposes of s 14A, 2 or more offences arising from the same incident are to be treated as a single offence. (By subs 4(b) two or more offences arising from the same incident are to be treated as a single Class 1 offence if at least one is a Class 1 offence. Thus, for the purposes of s 14A, it is the most serious offence that determines the reporting period.) The effect of subs (4)(a) is that a person found guilty of two or more offences arising out of the same incident has the benefit of the shorter reporting period.

  5. By s 14B(1) the reporting periods specified in s 14A do not apply to a person who was a child at the time of committing the registrable offence. By subs (2) those periods are halved, and, where the reporting period would (for an adult offender) be for the life of the offender, the reporting period is 7 and a half years.

  6. Classification of an offender as a “registrable person” also carries consequences under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) (“the CPOPO Act”). By s 4 of the CPOPO Act, the Commissioner may apply to the Local Court for an order under Pt 2 thereof prohibiting a registrable person from engaging in specified conduct. By s 5(1), the Local Court may make such an order if satisfied that there is reasonable cause to believe, having regard to the nature and pattern of conduct of the person, that the person poses a risk to the lives or sexual safety of one or more children, or children generally, and that making the order will reduce that risk. By s 7, the Local Court may make an interim order if it appears necessary to do so to prevent an immediate risk to the lives or sexual safety of one or more children, or children generally.

  1. Section 3A(2) of the CPOR Act provides a number of exceptions to s 3A(1) (which, as noted above, defines a “registrable person” as a person whom a court has, at any time, sentenced in respect of a registrable offence). If one of the exceptions applies, the person is not a registrable person, is not to be entered on the Child Protection Register and none of the consequential provisions (including reporting obligations) applies.

  2. Paragraph (c) of subs (2) excepts from the definition of registrable person a person who, as a child, committed certain specified offences. Relevantly, subs (2) (as presently in force) provides:

“Unless a person is a corresponding registrable person, a person is not a registrable person merely because the person –

(c)   as a child committed –

…

(ii) a single offence under section 91H of the Crimes Act 1900 … .”

  1. Section 91H(2) of the Crimes Act creates offences of producing, disseminating or possessing child abuse material (as defined in s 91FB). Section 91H(1) defines the terms “disseminate”, “possess” and “produce”. An offence against s 91H(2) is nominated in s 3 of the CPOR Act as a Class 2 offence. Section 91FB of the Crimes Act defines “child abuse material” as:

“…material that depicts or describes, in a way that reasonable persons would regard as being, in all the circumstances, offensive –

(a)   a person who is, appears to be or is implied to be, a child as a victim of torture, cruelty or physical abuse, or

(b)   a person who is, appears to be or is implied to be, a child engaged in or apparently engaged in a sexual pose or sexual activity (whether or not in the presence of other persons), or

(c)   a person who is, appears to be or is implied to be, a child in the presence of another person who is engaged or apparently engaged in a sexual pose or sexual activity, or

(d)   the private parts of a person who is, appears to be or is implied to be, a child.”

A legislative note to subs (2)(c) of s 3A of the CPOR Act directs attention to Schedule 2 thereof, which, in cl 23, relevantly provides:

“(2)    A reference in section 3A(2)(c)(ii) to an offence under section 91H of the Crimes Act 1900 includes a reference to an offence (committed before the commencement of section 91H) under section 578B or 578C (2A) of the Crimes Act 1900”.

  1. As will be discussed below, at the time relevant to this appeal, s 3A(2)(c)(ii) was in different terms.

  2. Subsection (5) of s 3A of the CPOR Act provides (and provided at the relevant time):

“A reference to a single offence in this section includes a reference to more than one offence of the same kind arising from the same incident.”

  1. Subsection (3) of s 3 provides (and at the relevant time provided):

“For the purposes of this Act, offences arise from the same incident only if they are committed within a single period of 24 hours and are committed against the same person.”

  1. It is the interaction of s 3A(2)(c)(ii), s 3A(5) and s 3(3) of the CPOR Act that raises the present question of construction.

  2. Prior to 23 October 2014, s 3A(2)(c)(ii) was in different terms. It made no reference to s 91H of the Crimes Act. Section 3A(2) then relevantly provided:

“Unless a person is a corresponding registrable person, a person is not a registrable person merely because the person:

…

(c)   as a child committed:

…

(ii) a single offence under section 578B or 578C (2A) of the Crimes Act 1900 or an offence of possessing or publishing child pornography (in whatever terms expressed) under the laws of a foreign jurisdiction.”

  1. Until January 2005, s 578B(2) of the Crimes Act created an offence of possession of child pornography. “Child pornography” was defined in s 578B(1) by reference to a classification system then in force under the Classification (Publications, Films and Computer Games) Act 1995 (Cth). It was defined as a film, publication or computer game classified “RC” (“Refused Classification”), or an unclassified film, publication or computer game that would, if classified, be classified “RC” on the basis that it describes or depicts in a way that is likely to cause offence to a reasonable adult, a person (whether or not engaged in sexual activity) who is a child under 16 or who looks like a child under 16.

  2. Section 578B was repealed from 1 January 2005: Crimes Amendment (Child Pornography) Act 2004 (NSW). By the same legislation s 91H was inserted into the Crimes Act. From that date there could be no offence against s 578B.

  3. Section 578C(2), which is still in force, creates an offence of publishing an indecent article. “Publish” is defined; “indecent” is not. Subsection (2A), repealed with effect from 1 January 2005, created an offence of publication of child pornography (adopting the s 578B(1) definition of “child pornography”). That provision is not in issue in the present appeal.

  4. The references to ss 578B and 578C were omitted from s 3A(2)(c)(ii) and replaced with a reference to s 91H of the Crimes Act, with effect from 23 October 2014: Child Protection (Offenders Registration) Amendment (Statutory Review) Act 2014 (NSW). By the same legislation, the phrase “possessing or publishing child pornography” (with respect to comparable offences under the laws of a foreign jurisdiction) was omitted and replaced by “producing, disseminating or possessing child abuse material”. These amendments somewhat belatedly synchronised s 3A(2)(c)(ii) with the then current provisions of the Crimes Act. They had not been enacted or come into effect either at the time the respondent committed the offences the subject of this appeal (18 November 2013) nor by the date on which he was sentenced for those offences (26 May 2014).

  5. As at each of those dates, s 3A(2)(c)(ii) of the CPOR Act did not, in its terms, exempt from the provisions of subsection (1) a person who, as a child, had committed a single offence (as explained by subs (5) of s 3A and subs (3) of s 3) under (against) s 91H.

  6. The legislative history of s 3(3) is of some importance. The CPOR Act received Royal Assent on 27 June 2000. It contained in s 3 a definition of “registrable person” in terms similar to those of the present s 3A(1); an exception from that definition in terms generally parallel to those of the present s 3A(2)(c)(ii); and an explanation of “single offence” in terms identical to those of the present s 3A(5). There was no equivalent of the present subs (3) in s 3 as originally enacted.

  7. There was some delay in proclaiming the commencement of the CPOR Act. It seems that some disquiet arose concerning the operation of what is now s 14A(4)(a), which then appeared, in different terms, in s 14. It is apparent that the concern was with the shorter reporting period that would result from the operation of what is now s 14A(4)(a) (by which multiple offences arising from the same incident are to be treated as a single offence). On 20 June 2001, the Child Protection (Offenders Registration) Amendment Bill was presented to the Legislative Assembly by which it was proposed to introduce subs (3) into s 3.

  8. Reading the Bill for the second time the Minister for Police, Mr Whelan, said:

“The bill closes two loopholes that may allow a small number of recidivist offenders, or offenders against multiple victims, to benefit from the shorter registration periods provided for one-off offenders.

…

The Act treats offences arising from the same incident as a single offence, as it is possible that an offender may be charged with multiple offences for the same action. The Act seeks to impose longer registration periods on recidivists, not people who receive multiple charges for a one-off offence against a single victim. However, the implementation committee recommended that the same incident test needs to be more clearly defined to prevent some high-risk offenders from pursuing legal arguments that they should be subject to the lower registration periods of one-off offenders. For example, they may argue that their offences over a period of time stem from some common causal incident, perhaps their own abuse as a child.

…

It was never the intention of the Government that lawyers would spend valuable court time arguing the meaning of ‘arising from the same incident’. Accordingly, new section 3(3) makes the meaning of that term precise and transparent. New section 3(3) adopts the 24-hour threshold used in distinguishing the separate incidents in the offence of persistent sexual abuse of a child. Offenders who commit offences outside a single period of 24 hours demonstrate clear recidivist behaviour and will not be able to satisfy the same incident test. The test also excludes persons who commit offences against more than one victim, even where those offences were committed at the same time.” (Hansard, NSW Legislative Assembly, 20 June 2001)

  1. The Bill passed both Houses of Parliament on 6 July 2001 and received assent on 17 July 2001. The CPOR Act (including s 3(3)) was proclaimed to commence on 15 October 2001.

  2. Before turning to the question of construction it is convenient to set out the relevant factual background, which is not complex and may be done succinctly.

Factual background

  1. The respondent was born in May 1996. He suffers from autism spectrum disorder and has a low functioning intelligence quotient. In 2013 he lived in a group home with two other young men.

  2. As mentioned above, on 18 November 2013, when he was 17 years of age (and was, for the purposes of the CPOR Act, a child), the respondent was found to be in possession of 3 electronic devices, each of which contained child abuse material (within the definition of “child abuse material” in s 91FB of the Crimes Act). The material on all devices was identical. He was arrested and charged by Court Attendance Notices with 3 offences against s 91H(2) of the Crimes Act. Each Court Attendance Notice alleged that the respondent did, on 18 November 2013, “produce, disseminate or possess child abuse material”. The Court Attendance Notices did not specify whether the offences alleged to have been committed by the respondent were constituted by production of child abuse material, dissemination of child abuse material or possession of child abuse material.

  3. It was, however, never suggested that the respondent either produced or disseminated the material on the devices, and a Fact Sheet prepared by the prosecuting authority (upon the basis of which the respondent was sentenced) stated that the respondent was in possession of “child pornography” or “child abuse material” on three “flash storage drives”. It may therefore be assumed that the offences with which the respondent was charged, and to which he pleaded guilty, were offences of possession. The material was described as photographs depicting completely naked children, between four and fifteen years of age, exposing their genitals, and as cartoons that could be categorised as child abuse material. Intermixed with these were some adult pornography and photographs of the respondent.

  4. According to the Fact Sheet, when interviewed the respondent said that he had found a “flash card” containing the photographs of the naked children on a rubbish pile under a bridge near his house. He said that he then transferred the contents to another flash drive in case he lost the first, and to his phone’s micro flash drive, and that he downloaded some photographs of naked children from a website. Possession of the flash card, and the transfer to the two other devices, presumably accounts for the three separate charges.

  5. In May 2014 the respondent entered a plea of guilty to each count.

  6. On 26 May 2014 in the Children’s Court at Broadmeadow, a 14 month good behaviour bond was imposed in respect of each count, pursuant to s 33(1)(b) of the Children (Criminal Proceedings) Act. As a consequence of those orders, unless s 3A(2)(c)(ii) operated to exempt him, by s 3A(1) of the CPOR Act the respondent became a registrable person, and by s 10 thereof he became obliged to report to the Commissioner such personal information specified by s 9 as was relevant in his case. By s 8, this obligation arose whether or not he was, as required by s 4(1) and s 5, notified of that obligation and the consequences of a failure to comply, by, respectively, the sentencing court and the supervising authority.

  7. In fact, the respondent was not given that notice by the sentencing court, nor was he given notice of the consequences of failure to comply with those obligations. Nor was he given notice by the supervising authority as required by s 5. Nor was he then given any notice under s 7 by the Commissioner.

  8. Two and a half years later, on 24 November 2016, the Commissioner issued the respondent with a notice, presumably under s 7 of the CPOR Act, and his name was entered on the Child Protection Register. On 22 February 2018, on the application of the Commissioner, the Local Court of NSW made an interim order under s 7 of the CPOPO Act prohibiting the respondent from engaging in specified conduct, including:

  1. approaching or contacting any person under the age of 18 years (except as outlined in order (ii));

  2. approaching or contacting any relative under the age of 18 years without authorisation or supervision by the Secretary of Family and Community Services, or a delegate;

  3. attending or being in the vicinity of premises that specifically cater for children (e.g. schools and child-care centres);

  4. attending venues used for recreation or entertainment purposes by large crowds including children without giving notice to police and obeying such reasonable directions as are given;

  5. recording or attempting to record images of persons under the age of 18 years;

  6. possessing or attempting to possess and viewing or attempting to view, images of persons under the age of 18 years in any state of undress.

    1. Subject to s 6 of the CPOPO Act, which imposes time limits on the term of prohibition orders generally, there does not appear to be any time limit on the duration of an interim prohibition order, which by s 7(6) of the CPOPO Act, remains in force until it is revoked or the relevant application is withdrawn or dismissed, whichever occurs first. On 14 August 2018, final orders under s 5 of the CPOPO Act were made, for a period of two years. It may be inferred that the orders were in substance the interim orders previously made under s 7. The s 5 orders expired on 14 August 2020. On the same date as the final orders were made (14 August 2018) the respondent (by then an adult) pleaded guilty to a charge under s 17(1) of the CPOR Act of failing to comply with his reporting obligations. The respondent was convicted and a two-year good behaviour bond pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the Sentencing Procedure Act”) was imposed. On 4 August 2020 a further interim prohibition order under s 7 was made in the Local Court at Katoomba, in similar terms to that earlier made.

    2. On 2 April 2020, 14 July 2020, and 1 March 2021, the respondent was charged, successively, with offences against s 17(1) of the CPOR Act (of failing to comply with his reporting obligations). On 1 March 2021, he was also charged with an additional offence against s 13(1) of the CPOPO Act (of contravening a prohibition order).

The proceedings in the Supreme Court

  1. By summons filed in the Supreme Court on 21 July 2021 and amended on 23 August 2021, the respondent sought judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) of the series of decisions outlined above, and declaratory relief under s 75 thereof with respect to his status as a “registrable person”. The amended summons named the Commissioner as first defendant and the Local Court of NSW as second defendant. The Local Court filed a submitting appearance. The respondent also sought a significant extension of time in which to commence the proceeding. That extension was not opposed by the Commissioner, and was granted by the primary judge.

  2. By the amended summons the respondent sought a declaration that he was not, as at 24 November 2016, or at any other time, a “registrable person” within the meaning of s 3A(1) of the CPOR Act. He nominated a number of decisions the subject of the orders sought under s 69. These were summarised by the primary judge as:

  • the decision of the Commissioner on 24 November 2016 to exercise his power under s 7 of the CPOR Act to notify the respondent that he was a “registrable person” under s 3A of that Act;

  • the decisions of the Local Court of 14 August 2018 and 4 August 2020 to make, respectively, a prohibition order under s 5 of the CPOPO Act and an interim publication order under s 7 thereof;

  • the decision of the Local Court of 14 October (sic – August) 2018 under s 17 of the CPOR Act to convict and sentence the respondent for contravention of his s 9 and s 11 reporting obligations.

  1. The central issue raised in relation to each decision was whether the respondent was, within the meaning of s 3A(1) of the CPOR Act, a “registrable person”. Everything stemmed from that classification. If the respondent was not a “registrable person”, his name was not properly entered on the Child Protection Register; he was not bound by the s 9, s 10 and s 11 reporting obligations; he could not be convicted of offences under s 17 of the CPOR Act of failing in his reporting obligations; he could not be the subject of a prohibition order under the CPOPO Act; and he could not, therefore, be convicted of contravention of such an order. It was not in issue that, unless one of the exceptions provided by s 3A(2) applied, the consequence of the imposition of the bond under s 33(1)(b) of the Children (Criminal Proceedings) Act was that he was, by s 3A(1), a “registrable person”. The question was whether one of the exceptions applied.

  2. The respondent’s position was that the combined effect of s 3A(2)(c)(ii) and s 3A(5) of the CPOR Act was that he was not a “registrable person”. That was because the offences to which he pleaded guilty were committed by him as a child, and, by reason of subs (5) of s 3A, those offences constituted a single offence. That, in turn, was because all of the offences were of the same kind and arose out of the same incident. He therefore came within the exception to s 3A(1) provided by s 3A(2)(c)(ii).

  3. There was an obvious obstacle in the way of that contention. Subsection (5) expands the exception to s 3A(1) provided by subs (2)(c)(ii) to include in the exception multiple offences arising out of the same incident. But subsection (3) of s 3 narrows that exception so that the three offences could be treated as a single offence only on satisfaction of two (cumulative) conditions, that is, that the offences:

  1. were committed within a single 24-hour period; and

  2. were committed against the same person.

The respondent’s primary answer to that difficulty was that his offences, constituted by possession (as distinct from production or dissemination) of child abuse material were not committed against any person. Subsection 3(3) therefore had no application to his offences.

  1. Underlying this proposition was the further proposition that, for an offence to be committed against a person, a physical act is required. In the case of offences of possession of child abuse material, there is no physical act, and the offence is not committed against any person. An important part of the respondent’s argument in this respect was that, given the breadth of the definition of “child abuse material” in s 91FB of the Crimes Act, child abuse material may be constituted by cartoons, drawings, and verbal narratives drawn from the imagination, in which no actual child is involved. Possession of material in that category, on the respondent’s argument, cannot be said to be committed against any person. If that were correct, a person guilty of multiple offences of possession of this kind of child abuse material could never satisfy the second s 3(3) condition and could accordingly never have the benefit of the s 3A(2)(c)(ii) exception to s 3A(1). This was said to show that the application of s 3(3) to s 3A(2)(c)(ii) would be incoherent, arbitrary and perverse, since s 3A(2)(c) would not apply to the “least serious form of offence under s 91H” (namely, the possession of material which did not depict an actual child).

  1. Recognising that difficulty, the respondent proposed two alternative constructions of s 3(3). The first was that, to be given its intended effect, some adjustment should be made to the language of s 3(3); he proposed that the words “if committed against a person” should be inserted, so that the subsection would read:

“For the purposes of this Act, offences arise from the same incident only if they are committed within a single period of 24 hours and, if committed against a person, are committed against the same person.”

This was the respondent’s preferred and primary construction.

  1. The respondent’s second alternative construction invoked s 8(b) of the Interpretation Act 1987 (NSW), by which a reference in an Act to a word in the singular includes a reference to the word in the plural. Thus, s 3(3) would be read as though it provided:

“For the purposes of this Act, offences arise from the same incident only if they are committed within a single period of 24 hours and are committed against the same person or persons.”

  1. The Commissioner’s position was, essentially, that s 3(3) should be given its literal application; that the provision imposed two conditions on the applicability of the s 3A(2)(c)(ii) exception; that, for the exception to apply, both had to be satisfied; that possession of child abuse material could be (and, on the facts of this case, was) an offence committed “against a person [or persons]”; and that if the offences in respect of which an offender is sentenced are not committed against any person, the second condition could not be satisfied and the s 3A(2)(c)(ii) exception does not, and could not, apply. It was accepted on the Commissioner’s behalf that that construction could have incongruous results – for example, that a juvenile sentenced for multiple offences of possession of material depicting serious sexual assaults on one actual child would have the benefit of the exception, but that a juvenile offender sentenced for possession of child abuse material depicting cartoon characters or describing sexual acts involving imaginary or fictional children could never have the benefit of the exception.

The primary judgment

  1. The attention of the primary judge was not drawn to the language of s 3A(2)(c)(ii) at the dates the respondent committed the offences and was sentenced. Her Honour proceeded to determine the issues presented to her on the mistaken basis that s 3A(2)(c)(ii) as presently in force, which specifically refers to offences against s 91H of the Crimes Act, was the applicable legislation. In fact, the relevant version of s 3A(2)(c)(ii) referred to offences against s 578B and s 578C of the Crimes Act. It will be necessary to consider whether the change in the legislation has any bearing on the outcome of the proceedings (both in the Supreme Court and in this Court).

  2. The primary judge rejected the submission made on behalf of the respondent that, for an offence to be committed “against a person”, a physical act was necessary (at [101]). The respondent did not expressly seek to challenge that conclusion, although, as is clear from the discussion below, some of his submissions appeared to be an attempt to resuscitate the argument.

  3. The question that principally exercised the mind of the primary judge concerned the meaning to be attributed to the final words of s 3(3) – “and are committed against the same person”. Her Honour then considered those words with specific reference to offences of possession of child abuse material. She noted that, having regard to the breadth of the s 91FB definition, child abuse material may be constituted by drawings, cartoons or written narratives “conjured from an offender’s imagination” ([82]), and involving no exploitation or victimisation of any actual child: see Whiley v R [2010] NSWCCA 53. (It may be noted that the decision in Whiley was concerned with the assessment of objective seriousness of an offence of production of child pornography under s 91H in its then form). The primary judge considered that to apply s 3(3) in such cases would give rise to an incoherent result. She illustrated her point in the following way:

“104   …a juvenile offender charged with two counts of possessing child abuse material, one count pertaining to a written narrative and the other to a drawing of [sic-or] a cartoon, both possessed within a 24 hour period would only be exempted under s 3A(2)(c)(ii) if they were ‘committed against the same person’.”

But, her Honour added, “Clearly they were not committed against any person at all”. That being the case, the offender would not be entitled to the benefit of the exception.

  1. Referring to the dissenting but frequently cited reasons of McHugh J in Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 (“Kelly”), in which his Honour said that, in construing legislation to which a definition applies, the proper course is to read the words of the definition into the substantive enactment and then construe the substantive enactment, her Honour considered that reading s 3(3) into s 3A(2)(c)(ii) would not produce a coherent result. That, she said, was because, in the illustration she gave, the offences “were not committed against any ‘person’ at all”. This was said to result in the following “incongruous result”:

“a juvenile charged with multiple offences of possessing child abuse material depicting serious sexual assaults on one real child would not be a registrable person (assuming that the offences are committed within a single period of 24 hours and are of the same kind), whereas a juvenile charged with two or more counts of possessing child abuse material depicting cartoon characters or merely describing sexual acts concerning children, where the objective criminality is less, would always be a registrable person.”

  1. Her Honour considered (at [108]) that “the incoherent results that flow from” the construction advanced by the Commissioner were a result of inadvertence and/or omission in the drafting of s 3(3), but that the oversight is not one that could be repaired or corrected by the judicial insertion of different or additional words (as proposed on behalf of the respondent). Her Honour cited Taylor v Owners – Strata Plan 11564 (2014) 253 CLR 531; [2014] HCA 9 (at [38] and [65]-[66]); (see also the authorities discussed in State of New South Wales v Kaiser [2022] NSWCA 86 (“Kaiser”) at [109]-[123]).

  2. Her Honour therefore held:

“115   Accordingly, I am satisfied that s 3(3) does not apply to the exemption for a possession offence contrary to s 91H for the purposes of s 3A(2)(c)(ii) of the Act. The plaintiff was not a registrable person at the relevant time as he fell within s 3A(2)(c)(ii) as extended by s 3A(5).”

  1. The effect of that conclusion is that, in the case of offences of possession of child abuse material under s 91H (but not in the case of offences of production or dissemination of child abuse material under the same section) the exception to s 3A(1) provided by s 3A(2)(c)(ii) is to be determined only by reference to subs (5). Section 3(3) is to be disregarded. A person who, as a child, commits a single offence, or multiple offences, against s 91H would not be a registrable person if the offences were “of the same kind arising from the same incident”. There would be no requirement that the offences be committed within the narrow time frame specified in s 3(3), nor that they be committed against the same person.

  2. Consistently with that conclusion, on 25 March 2022 her Honour made the following orders:

(1) A declaration that the plaintiff was not as at 24 November 2016, or at any subsequent time, and is not, a “registrable person” within the meaning of s 3A of the Child Protection (Offenders Registration) Act 2000 (NSW).

(2) The decision of the Local Court of NSW at Newcastle on 14 August 2018 imposing a prohibition order on the plaintiff under s 5 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) is quashed.

(3) The decision of the Local Court of NSW at Katoomba on 4 August 2020 imposing an interim prohibition order on the plaintiff under s 7 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) is quashed.

(4) The bond imposed by the Local Court of NSW at Newcastle on the plaintiff on 14 August 2018 under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (H 233593898) is set aside.

  1. On 8 April 2022, by consent, her Honour varied order 4 to read:

(4) The finding that the plaintiff was guilty of an offence against s 17(1) of the [CPOR Act] and the bond imposed by the Local Court of NSW at Newcastle on the plaintiff on 14 August 2018 under s 10 of the [Sentencing Procedure Act] is set aside.

The appeal

Applicable legislation

  1. At the outset of the hearing of the appeal, a question arose as to which version of s 3A(2)(c)(ii) of the CPOR Act is applicable. By a joint submission, the parties agreed that the applicable version is that which was in force as at 26 May 2014, the date on which the respondent pleaded guilty to the three charges and was sentenced. That may or may not be correct. An alternative proposition is that the relevant date is the date of the offences. As there was no material difference in the terms of the legislation between those dates, it is not necessary to take further time on that question.

  2. As has been noted above, at the relevant time (whether that be the date of the offences or the date of sentencing), s 3A(2)(c)(ii) did not create an exception to s 3A(1) for offences against s 91H of the Crimes Act. The exception it relevantly created was with respect to offences against s 578B of the Crimes Act (a provision which had, by that time, been repealed). A question thus arises as to whether the reference to offences against s 578B of the Crimes Act could, and should, be read as a reference to offences against s 91H.

  3. Clause 23 of Schedule 2 of the CPOR Act, to which attention is directed by the legislative note to the current s 3A(2)(c) (which was first inserted on 23 October 2014), casts no light on this question. That clause relevantly provides that the reference to s 91H in s 3A(2)(c)(ii) includes a reference to an offence under s 578B committed before the commencement of s 91H. The respondent’s offences were not committed before the commencement of s 91H.

  4. The parties agreed, invoking s 68(3) of the Interpretation Act, that the reference in s 3A(2)(c)(ii) to s 578B of the Crimes Act ought to be taken as a reference to s 91H. Section 68 of the Interpretation Act relevantly provides:

“(1)   In any Act or instrument, a reference to some other Act or instrument extends to the other Act or instrument, as in force for the time being.

(2)    …

(3)   Notwithstanding subsection (1), in any Act … ---

(a)   a reference to an Act that has been repealed and re-enacted, with or without modification, extends to the re-enacted Act, as in force for the time being,

…

and a reference to a provision of the repealed Act … extends to the corresponding provision of the re-enacted Act … .”

  1. Whether the reference in s 3A(2)(c)(ii) of the CPOR Act to s 578B of the Crimes Act is to be taken as a reference to s 91H of the Crimes Act depends upon whether s 91H is to be seen as a “corresponding provision” (that is, corresponding to s 578B). That is a question that requires “close analysis”: Woolworths Ltd v Lister [2004] NSWCA 292 at [9] (Handley JA, Beazley and Ipp JJA agreeing).

  2. As mentioned above, s 578B of the Crimes Act was omitted by the Crimes Amendment (Child Pornography) Act 2004 and, by the same legislation, the new s 91H was inserted. Section 91H did not then take its current form. Subsection (2) of s 91H, as enacted in 2004 and in force until 17 September 2010, created offences of producing or disseminating child pornography, for which a maximum penalty of imprisonment for 10 years was prescribed. Subsection (3) created a separate offence of possession of child pornography, for which a maximum penalty of imprisonment for 5 years was prescribed. Subsection (1) defined “child pornography” as:

“…material that depicts or describes, in a manner that would in all the circumstances cause offence to reasonable persons, a person under (or apparently under) the age of 16 years:

(a)   engaged in sexual activity, or

(b)   in a sexual context, or

(c)   as the victim of torture, cruelty or physical abuse (whether or not in a sexual context).

Subsections (4) and (5) specified defences available to charges of offences against subss (2) or (3) of s 91H.

  1. That the version of s 91H enacted in 2004 was intended to correspond to s 578B(2) of the Crimes Act is clear from the extrinsic materials that accompanied and explained the Bill when introduced into the Legislative Assembly. The Explanatory Note relevantly stated:

“Schedule 1 [5] omits section 578B, the existing offence relating to possession of child pornography. Schedule 1 [8] omits such parts of section 578C that relate to publishing child pornography. These provisions are re-enacted by Schedule 1 [4] as proposed section 91H.”

  1. The Attorney-General, on the second reading of the Bill, explained its main purpose as being to increase the maximum penalties for child pornography offences and to expand the definition of child pornography to encompass violence and torture against children. With respect to the new s 91H, the Attorney-General said (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 11 November 2004 at 12738):

“A new section 91H is inserted into the Crimes Act by item [4] of schedule 1. The new offences contained in that section, entitled production, dissemination or possession of child pornography, were previously covered by sections 578B and 578C.”

  1. I have little difficulty, therefore, in accepting that s 91H (as enacted in 2004), was a “corresponding provision” of s 578B of the Crimes Act, and, accordingly, that the reference in s 3A(2)(c)(ii) of the CPOR Act to s 578B extends to s 91H as enacted in 2004.

  2. That, however, is not the end of the legislative history. The 2004 version of s 91H was omitted and replaced by the current version with effect from 17 September 2010: Crimes Amendment (Child Pornography and Abuse Material) Act 2010 (NSW). Notably, the term “child pornography” was replaced by the term “child abuse material” which was (and is) defined in s 91FB(1). A separate provision (s 91HA) specified defences available to a charge of an offence against s 91H(2).

  3. An Explanatory Note to the Bill as presented to Parliament identified its objects as two-fold:

  1. “to change the law as it relates to child pornography (which will now be referred to as child abuse material)” by removing certain defences; and

  2. to make the law more consistent with Commonwealth offences relating to child pornography.

    1. I am satisfied that the revised (current) version of s 91H of the Crimes Act is, essentially, a provision corresponding to the previous s 578B. I accept the joint submission of the parties that the reference in s 3A(2)(c)(ii) (as in force at the date of the respondent’s offences and the date of sentencing) to s 578B of the Crimes Act should be taken as a reference to s 91H of the Crimes Act.

The substance of the appeal

  1. That brings me to the substance of the appeal.

  2. The Commissioner has identified only one ground of appeal, formulated as follows:

“The primary judge exceeded her task of statutory construction and erred by disapplying s 3(3) of the [CPOR Act] for the purposes of s 3A(2)(c)(ii), as extended by s 3A(5), of that Act in relation to possession offences contrary to s 91H of the Crimes Act 1900 (NSW).”

  1. In his written submissions, the respondent put, as his primary case, that the primary judge’s construction was correct. In support of the that construction, the respondent sought to illustrate what were asserted to be the potentially incoherent results of applying s 3(3) to s 91H offences, by reference to the manner in which s 91H possession offences are in practice prosecuted. A person in possession of a number of documents or devices, each constituting a single instance of child abuse material, may be (as was the respondent) charged with an offence relating to each document or device. A person in possession of (for example) an electronic device or an album containing thousands of images of multiple children constituting child abuse material could be, and usually is, charged with a single offence. That person would be entitled to the s 3A(2)(c)(ii) exception, having committed a single offence (although multiple children are involved). Recourse to subs (5) and s 3(3) would not be necessary nor appropriate.

  2. By notice of contention, the respondent again advanced two alternative constructions of s 3(3), substantially as advanced before the primary judge. The first alternative proceeded on the basis that, contrary to the conclusion of the primary judge, s 3(3) is applicable to offences against s 91H. If so, it was argued:

  • that the second limb of s 3(3) (that, for two or more offences to arise from the same incident they must be committed against the same person) does not apply to offences against s 91H that are not offences of a kind that are committed against a person “in the relevant sense”;

  • that an offence of possession of child abuse material is not of kind that is committed against a person, because the “physical element of the offence is the existence of a particular state of affairs”, namely the “possession of material of a particular character”; and

  • that, therefore, two or more such offences “arise from the same incident” if they are committed within a single period of 24 hours.

  1. On that construction, it was argued, the respondent was entitled to the benefit of the s 3A(2)(c)(ii) exception because the three offences of which he was found guilty were of the same kind and committed within a period of 24 hours and the respondent was, therefore, not at any relevant time a “registrable person”.

  2. The second alternative construction advanced on behalf of the respondent replicated the second alternative construction proposed at first instance, that is, that, in reliance on s 8(b) of the Interpretation Act, s 3(3) should be read as though it provided:

“For the purposes of this Act, offences arise from the same incident only if they are committed within a single period of 24 hours and are committed against the same person or persons.”

  1. For the purposes of the appeal both parties modified their positions to some extent. The respondent abandoned his contention that, for an offence to be committed “against a person”, a physical act is required.

  2. The Commissioner accepted that, given the scope of s 91H and the breadth of offences encompassed by that section, there is “considerable difficulty” in applying s 3(3) to the exception provided by s 3A(2)(c)(ii). Nevertheless, it was contended, the provision should be applied “according to its terms”, although that might produce some “incongruous” results. The Commissioner accepted that, where possession offences are not capable of being committed against a person, the second limb of s 3(3) “arguably has no work to do”.

  3. That, however, the Commissioner argued, is not this case. On the facts presented to the Local Court, the respondent was in possession of three electronic devices containing photographic images of naked “children” (clearly constituting child abuse material). The offences were therefore, on any view, committed against actual children, and not “committed against the same person”. Implicit in that argument, and made explicit in the Commissioner’s submissions, is the proposition that an offence of possession of child abuse material depicting or describing an actual child or actual children is an offence against that child or those children.

  4. The respondent did not accept that proposition. He argued that a possession offence does not have “the character that lends itself to being committed against a person” and characterising such an offence as being committed against a person does not reflect the intention of the legislature. To support that contention he referred to the various offences nominated in s 3 as “Class 1” and “Class 2” offences, at least the majority of which are “direct contact” offences.

Consideration and conclusions

  1. For the convenience of the reader, I set out again the central provisions:

“3A(2)    … a person is not a registrable person merely because the person –

(c)   as a child committed –

(ii)   a single offence under [s 91H] of the Crimes Act … .”

“3A(5)   A reference to a single offence in this section includes a reference to more than one offence of the same kind arising from the same incident.”

“3(3)   For the purposes of this Act, offences arise out of the same incident only if they are committed within a single period of 24 hours and are committed against the same person.”

  1. Sections 3A(5) and 3(3) are both definition sections. Adopting the Kelly approach of reading the words of the definitions into the substantive provision, s 3A(2)(c)(ii) produces the following result:

“3A(2)   …a person is not a registrable person merely because the person –

(c)   as a child committed –

(ii) … more than one offence of the same kind under s 91H of the Crimes Act [provided that the offences] are committed within a single period of 24 hours and are committed against the same person.”

  1. I see no incoherence in that formulation. True, its application may, as the Commissioner acknowledged, and as has been shown above, produce some incongruous and even unfair results. But incongruity and unfairness in the application of legislature is not the same as incoherence. It is not the role of the court to arbitrate on the fairness of legislation: see Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; [1981] HCA 26 (“Cooper Brookes”) (considered in more detail below).

  2. Absent s 3(3), it would appear that the respondent’s three offences (which were clearly “of the same kind”) arose out of the same incident. The “incident” could be seen to be the respondent coming across and taking possession of the flash drive. From that “incident” the respondent transferred or copied the content to the other devices. On ordinary language, all three offences arose from the same incident. However, s 3(3) narrows the meaning of “arising from the same incident”.

  3. As noted above, s 3(3) has two cumulative limbs, each of which, on the Commissioner’s contention, must be satisfied before offences can be said to have arisen out of the same incident. The first limb is that all offences were committed within a single 24-hour period. Although, having regard to the circumstances in which the offences came to light, there was evidence that the respondent had been in possession of the devices for more than one day, he was charged with offences committed on a single day, 18 November 2013. There was thus no dispute that, in this case, the first limb of s 3(3) was satisfied. The question is whether all offences were committed against the same person. It was the difficulty that lay in the way of satisfying this limb, in cases where it could not be said that the offences were committed against a person, that led the primary judge to conclude that s 3(3) could not (or should not) be applied in cases of possession of child abuse material.

  4. The first thing to note about the primary judge’s conclusion is that it is contradicted by the opening words of s 3(3) which are:

“For the purposes of this Act … “

There is no reason not to give those words their full value. The s 3(3) definition applies to the phrase “arising from the same incident” where that phrase appears in the CPOR Act – that is, in s 14A(4)(a) and s 3A(5). It is apparent from the Minister’s Second Reading Speech introducing subs (3) of s 3, extracted above at [40], that the focus of the legislature in enacting s 3(3) was on s 14A(4)(a), by which, for the purposes of the duration of an offender’s reporting obligations, two or more offences “arising from the same incident” are to be treated as a single offence – significantly reducing the reporting period. But it is not possible to apply that definition to the phrase “arising from the same incident” as it appears in s 14A(4)(a), and not to apply it to the identical phrase as it appears in s 3A(5).

  1. The second thing to note is that, on the approach of the primary judge, s 3(3) would apply to some offences (production and dissemination of child abuse material) against s 91H but not others (i.e., possession). It is difficult to see why its application to s 3A(2)(c)(ii) should be divided in that way.

  2. The third thing to note is that, if s 3(3) were not to apply to offences of possession of child abuse material, there would be nothing to limit the exception provided by s 3A(2)(c)(ii) to offences committed within the narrow time frame specified, and which was clearly intended by the legislature. Thus, as was pointed out on behalf of the Commissioner, the “disapplication” of s 3(3) opened the s 3A(2)(c)(ii) exception to possession offences against s 91H of the same kind arising from the same incident, whenever committed, and (in cases where the offence is of a kind committed against a person) against an unlimited number of persons. This is the very result that s 3(3) was introduced to avoid.

  3. The fourth thing to note is that the primary judge’s reasoning depended on the proposition, inherent in the Commissioner’s original construction, that if the offences under consideration are not committed against a person, so that the second limb of s 3(3) cannot be satisfied, then the s 3A(2)(c)(ii) exception cannot apply. If this proposition is accepted, then the “incongruous” outcome, identified by the primary judge, might indeed arise: namely, a child who commits two or more offences of possession of child abuse material that depicts fictional children could never rely on the s 3A(2)(c)(ii) exception, whereas a child convicted of “multiple offences of possessing child abuse material depicting serious sexual assaults on one real child” might rely on the exception. However, this proposition is unjustified. The Commissioner’s alternative construction, advanced only on appeal (but consistently with the respondent’s first alternative construction), that, where the offending in question is not committed against a person, the second limb of s 3(3) simply has no work to do, is apposite. On this construction, even where child abuse material, such as cartoons or writing depicting fictional children, does not pertain to a real child, the exception in s 3A(2)(c)(ii) can still apply, provided the other conditions in s 3(3) and s 3A(5) are met. As explained below, this construction should be accepted. This being so, much of the “incongruity” identified by the primary judge falls away.

  4. It is apparent that the legislature, in enacting s 3(3), did not have in contemplation that some offences are not committed “against a person”. Unsurprisingly, perhaps, underlying s 3(3) is an unstated assumption – that offences are necessarily committed against a person (or persons). As can be seen from the discussion above, that is not necessarily so. (It should not be accepted, however, as appears from some of the discussion in the primary judgment, that because the child abuse material in question consists of cartoons or verbal narratives, it cannot constitute an offence “against a person”. As every a politician, and many a public figure, knows, a cartoon may involve an actual person, as may a verbal narrative.)

  5. That legislation might be enacted that does not accurately or adequately reflect the intention of the legislature is not a novel proposition. In Cooper Brookes, Gibbs CJ said (at 304-5):

“It is an elementary and fundamental principle that the object of the court, in interpreting a statute, ‘is to see what is the intention expressed by the words used’ … It is only by considering the meaning of the words used by the legislature that the court can ascertain its intention. And it is not unduly pedantic to begin with the assumption that words mean what they say … Of course, no part of a statute can be considered in isolation from its context – the whole must be considered. … There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case. … However, if the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that ‘it may degrade into mere judicial criticism of the propriety of the acts of the Legislature’ …; it may lead judges to put their own ideas of justice or social policy in place of the words of the statute. On the other hand, if two constructions are open, the court will obviously prefer that which will avoid what it considers is to be inconvenience or injustice.”

  1. There have been cases, reviewed at [110]-[115] of Kaiser, in which the courts have applied a remedial construction or “realistic solution” to legislation that plainly did not reflect the intention of the legislature. In my opinion the clear intention of the legislature in this case was to exempt from the operation of s 3A(1) juvenile offenders who commit a single offence against s 91H, or multiple offences arising from the same incident, provided they are committed within a single period of 24 hours and (if committed against a person) are committed against the same person.

  2. Nevertheless, in this case I am satisfied the legislature cannot have intended that an offender who commits an offence of possession of child abuse material that, by reason of the nature of the material possessed, is not committed against any person, is worse off than one whose offences are committed against an actual person. To attribute such an intention to the legislature would border on the absurd.

  3. The respondent’s first proposed alternative construction of s 3(3), should therefore be accepted. If the offences are committed within a single 24-hour period but are not committed against any person, the first limb of s 3(3) is sufficient to trigger the operation of the exception to s 3A(1). Resort to the second limb of s 3(3) is unnecessary. Section 3(3) should be read as:

“For the purposes of this Act, offences arise from the same incident only if they are committed within a single period of 24 hours and (if they are committed against a person) are committed against the same person”.

This construction is consistent with that advanced by the Commissioner on appeal.

  1. That leaves for consideration the application of s 3(3) to the facts of the present case. As noted above, the parties were at odds as to whether possession offences (where, as here, an actual child is or actual children are involved) are offences committed against a person (or persons).

  2. Notwithstanding the argument advanced on behalf of the respondent, I have come to the conclusion that possession of child abuse material involving an actual child or actual children is an offence committed against the child or children involved. That is in accordance with the first of the objects of the CPOR Act – the protection of children from serious harm.

  3. Possession of child abuse material involving an actual child or actual children depends on the production of the child abuse material, which undoubtedly is an offence committed against the child or children involved. Possession of such child abuse material derives from the offence of production, and perpetuates the harm done by the production. It is, in itself, an offence against the child or children depicted or described.

  4. I therefore accept, as the Commissioner submitted, that the respondent’s offences were committed against the children depicted in the photographs contained on his devices. More than one child was involved. Accordingly, the respondent’s offences did not arise from the same incident because, although they can be taken to have been committed within a single 24-hour period, they were not committed against the same person. The respondent was not entitled to the benefit of the s 3A(2)(c)(ii) exception to s 3A(1) of the CPOR Act. He was, therefore, within s 3A(1) of the CPOR Act a registrable person and subject to the consequences of that status.

  5. The respondent’s second alternative construction – that is, that “the same person” in s 3(3) should be read as “the same person or persons” – should be rejected for the reasons given by the primary judge.

  6. The appeal should be allowed and the orders of the primary judge set aside. In lieu thereof the amended summons filed in the Supreme Court on 23 August 2021 should be dismissed. The parties agreed to bear their own costs of the appeal.

  7. The orders I propose are, therefore:

  1. Leave to appeal granted;

  2. Appeal allowed;

  3. The orders of the Supreme Court of 25 March 2022 (as varied on 8 April 2022) set aside;

  4. In lieu thereof, the amended summons filed in the Supreme Court on 23 August 2021 dismissed.

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Decision last updated: 24 April 2023

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Statutory Material Cited

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Kelly v The Queen [2004] HCA 12
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