Dillon v Commissioner of Police (NSW)

[2023] NSWDC 380

District Court

New South Wales

Medium Neutral Citation:

Dillon v Commissioner of Police (NSW) [2023] NSWDC 380

Hearing dates:

14 September 2023

Date of orders:

14 September 2023

Decision date:

14 September 2023

Jurisdiction:

Criminal

Before:

Abadee DCJ

Decision:

See paragraph 37

Catchwords:

HIGH RISK SEX OFFENDER – appeals and reviews – Commissioner applied in Local Court for Child Protection Prohibition Order (CPPO) - appeal from consent orders made by the Local Court containing variety of restrictions and prohibitions upon the applicant – conceded that a statutory requirement for the Local Court Magistrate making consent orders was not satisfied – whether proceeding should be remitted to the Local Court or whether this Court should determine merits of the Commissioner’s application – consideration of nature of appeal to this Court from consent orders made in the Local Court under the Child Protection (Offender Prohibition Orders) Act 2004 (NSW)

Legislation Cited:

Child Protection (Offender Prohibition Orders) Act 2004 (NSW) ss 5, 10,

Crimes (Appeal and Review) Act 2001 (NSW) ss 8(1), 18(2), 12(1),11A(2),12(3)(a), 20

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Local Court Act 2007 (NSW), s 70(1)(b)

Cases Cited:

McNab v DPP (NSW) (2021) 106 NSWLR 430

Category:

Principal judgment

Parties:

Commissioner of Police (NSW)
James DILLON

Representation:

Counsel:
Mr Wong for Commissioner of Police
Solicitors:
Ms S Salman Legal Aid High Risk Offender Unit

File Number(s):

2022/00180725

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. On 8 June 2022, an application was filed on behalf of the Commissioner of Police (NSW) (‘the Commissioner’) in the Blacktown Local Court for a Child Protection Prohibition Order (CPPO) against Mr James Dillon.

2. That application was listed at the Blacktown Local Court on 26 September 2022 and Mr Dillon was represented by a practitioner of the Legal Aid Commission. The legal representative indicated Mr Dillon’s opposition to a CPPO and the matter was set down for hearing on 22 December 2022 with an estimate of three hours.

3. Mr Dillon attended Blacktown Local Court on 22 December 2022; however, no lawyer appeared for him. A different legal practitioner appeared, as amicus on that date, on behalf of Legal Aid. A Court file note indicated that the Legal Aid Commission had assigned the matter to a private solicitor, but the solicitor was unaware of the assignment. Another assignment was required. The matter was adjourned, again, to 30 January 2023.

4. On 30 January 2023, initially, no lawyer appeared for Mr Dillon. Apparently the assigned lawyer was unaware of this listing. However, Mr Kak eventually arrived at the Blacktown Local Court and appeared for Mr Dillon. The matter proceeded to hearing on 30 January 2023. Subject to two variations, Mr Kak consented to a series (ultimately 12) orders sought on behalf of the Commissioner.

5. Mr Dillon now appeals those orders. The Court is empowered to hear that appeal by s 70(1)(b) of the Local Court Act 2007 (NSW). Such appeals are conducted in a similar fashion to appeals against convictions entered by the Local Court, that is to say, primarily, by rehearing on the basis of the evidence given in the Local Court^[1] , subject to fresh evidence adduced by the leave of this Court^[2] .

   1. Crimes (Appeal and Review) Act 2001 (NSW) (the ‘CAR Act’), s 18(1)

   2. CAR Act, s 18(2)

Requirement for leave?

6. Since the orders in the Local Court were made by consent, the Commissioner contends that this was analogous to a conviction being entered in that Court following a guilty plea^[3] . At any rate, Mr Dillon’s appeal was filed out of time^[4] . However, the Commissioner makes no objection to leave being granted.

   3. CAR Act, s 12(1)

   4. CAR Act, ss 11A(2) and 12(3)(a)

7. Mr Dillon’s solicitor eventually accepted that leave was required.

8. Leave should be granted for the reasons provided by the Commissioner.

Relevant statutory provisions

9. Section 5(1) of the Child Protection (Offender Prohibition Orders) Act 2000 (NSW) (“CPOPO Act”) empowers the Local Court to make a CPPO prohibiting a person from engaging in conduct specified in the order if satisfied that the person is a registrable person and that, on the balance of probabilities:

“(a) 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

(b) the making of the order will reduce that risk”.

10. It is common ground that Mr Dillon is a ‘registrable person’ for the purposes of s 5(1) of the CPOPO Act.

11. Section 5(3) provides a list of matters which the Local Court is obliged to consider when determining whether to make a child protection prohibition order. These are:

“(a) the seriousness of each offence with respect to which the person is a registrable person,

(b) the period of time since those offences were committed,

(c) the age of the person when those offences were committed,

(d) the age of each victim of the offences when they were committed,

(e) the difference in age between the person and each such victim,

(f) the person's present age,

(g) the seriousness of the person's total criminal record,

(h) the effect of the order sought on the person in comparison with the level of the risk that a further registrable offence may be committed by the person,

(i) to the extent that they relate to the conduct sought to be prohibited, the circumstances of the person, including the person's accommodation, employment needs and integration into the community,

(j) in the case of a young registrable person, the educational needs of the person,

(k) any other matters it thinks relevant.”

12. Section 10 facilitates the Local Court making a CPPO by consent. Sections 10(1) and (2) conferred the power to do so, respectively in relation to final and interim orders. Section 10(3) provides that:

“The Local Court is not required to conduct a hearing before making an order under this section unless the Local Court is of the opinion that it is in the interests of justice to conduct the hearing.”

13. Section 10(4) provides that:

“Without limiting subsection (3), in determining whether it is in the interests of justice to conduct the hearing, the Local Court may have regard to the following:

(a)   whether the registrable person has obtained legal advice in relation to the order concerned,

(b)   whether the person:

(i) has impaired intellectual functioning;

(ii) is subject to a guardianship order (within the meaning of the Guardianship Act 1987), or

(iii) is illiterate, or is not literate in the English language, or

(iv) is subject to some other conduction that may prevent the person from understanding the effect of giving consent to the order.”

14. The powers of this Court in determining this appeal are outlined in s 20 of the CAR Act. Section 20 provides that:

“(1) The District Court may determine the appeal against conviction –

(a)   by setting aside the conviction;

(b)   by dismissing the appeal, or

(c) in the case of an appeal made with leave under s 12(1) – by setting aside the conviction and remitting the matter to the original Local Court for redetermination in accordance with any directions of the District Court.”

The grounds of appeal

15. By his written submissions in this appeal (MFI 1), Mr Dillon identified two grounds of appeal:

1. The Local Court Magistrate failed to consider, when she was obliged to consider, whether it was in the interests of justice to conduct a hearing, when making consent orders (Ground 1);

2. On the premise that this Court should consider the merits of the appeal itself, that is, upon consideration of the question identified in s 5(1)(a) and with reference to the factors in s 5(3), this Court would not be satisfied that Mr Dillon poses a risk to the lives of sexual safety of one or more children on the evidence and that the making of the CPPO will reduce that risk. (Ground 2)

16. Anterior to Ground 2 is Mr Dillon’s contention that certain evidentiary items in the Commissioner’s case in the Local Court are inadmissible (the ‘Admissibility point’). If that is right, then subsumed within Ground 2 is Mr Dillon’s point that there is an insufficiency of material to ground the making of the orders sought by the Commission.

Ground 1

17. By her Counsel’s written submissions (MFI 2), the Commissioner concedes that Ground 1 is made out. The Commissioner accepts Mr Dillon’s argument that properly construed, ss 10(3) and (4) mandated that prior to making consent orders, the presiding Magistrate was required to turn her mind to whether or not it was in the interests of justice to conduct a hearing. In particular, although it is effectively presumed that a hearing is unnecessary where the registrable person consents to the order, nevertheless, the Local Court must still ask itself whether it is in the interests of justice to conduct a hearing.

18. I agree with the Commissioner that in circumstances where there was a mandatory obligation for the Magistrate to turn her mind to this question prior to making consent orders, the making of the order in breach of that requirement amounts to jurisdictional error.

19. Regrettably, it appears that this mandatory obligation was not brought to her Honour’s attention by the legal representatives of either the Commissioner or Mr Dillon.

20. Ground 1 is made out.

Consequence of Ground 1 being made out

21. The parties initially appeared to dispute what procedural course should follow from Ground 1 being established. Initially, Mr Dillon argued this Court should go on to consider Ground 2 which, as indicated, would entail this Court considering not only the admissibility point, but, if that point failed, to decide for itself whether the Local Court should have made the orders that it did.

22. The Commissioner argued that the appropriate course is to remit the matter back to the Local Court. Noting the matters raised in the appeal to this Court, the Commissioner envisaged that there would then be a contested hearing in the Local Court and a party dissatisfied with the outcome would not be precluded from bringing another appeal to this Court.

23. There was some attraction to this Court attempting to resolve (if it could) the dispute once and for all, to save the parties time and potentially further expense associated with a remitter.

24. But when this matter was called today, the solicitor for Mr Dillon accepted that if Ground 1 was established, the matter should be remitted to the Local Court.

25. In my view, the parties’ (now) common approach is correct.

26. First, it is strongly arguable that, by reason of ss 12(1) and 20(1) of the CAR Act, the matter should automatically be remitted. I agree with the Commissioner that the ground upon which Mr Dillon has succeeded required him, by analogy, to obtain the Court’s leave: consent orders under the CPOPO Act being analogous to a plea of guilty in the Local Court. Section 20(1)(c) indicates that when an appeal (against conviction) succeeds in this Court on a ground which requires leave, the matter is to be remitted to the Local Court.

27. Secondly, for a range of inter-related reasons, it strikes me that it is the Local Court that is the appropriate forum for determination of the contest.

28. Sections 4 and 5 of the CPOPO Act indicates that the Local Court is the proper Court for applications of this kind to be brought and determined, with appeals to be brought to this Court under the CAR Act. Although the CPOPO Act is of relatively recent origin, I expect that the Magistrates in the Local Court in general, may have been expected to have developed certain expertise and experience in the evaluation of the types of considerations contained in s 5(3) and, at the risk of generalisation, probably greater collective or corporate expertise in this context than Judges in this Court.

29. In a very general sense, and acknowledging the vastly different statutory objects of the legislation, CPPOs ordered under the CPOPO Act perform a not dissimilar function to Apprehended Domestic Violence Orders (ADVOs) or Apprehended Personal Violence Orders (APVOs) under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) in the sense that they are fundamentally preventative orders which substantively and even severely restrict the freedom of movement on persons subject to the orders. Orders are made under the latter legislation by the Local Court (or, if appropriate, Children’s Court) and involve the Local Court engaging in predictive decision-making about risks with reference to a list of non-exhaustive but mandatory considerations. Also, rights of appeal against the making of ADVOs or APVOs or the dismissal of an application for such orders are exercisable in this Court (s 84 of that legislation). The same type of predictive and evaluative nature of decision-making, with reference to non-exhaustive mandatory criteria, balancing competing considerations, occurs in the Local Court under s 5 of the CPOPO Act; with rights of appeal to this Court.

30. This Court’s jurisdiction to hear appeals from decisions under the CPOPO Act is just that: an appellate one. Although the Court may, in effect, step into the shoes of the Local Court on appeal to determine whether the Local Court’s decision is correct, the prevailing premise is that a determination on the merits has already been made by the Local Court, which determination can, amongst other things, be set aside or confirmed in this Court for a variety of errors. But these orders are made in this Court in the expectation that all the issues have been raised in the Local Court at first instance. It is a rehearing essentially on the transcript of evidence. It is not a hearing de novo. The desirability of there being a hearing on the merits is also reflected by the nature of the appeal to this Court, which generally (subject to fresh evidence) is on the transcript of proceedings in the Local Court. In other words, in appeals in this Court, the Court does not routinely see or hear the evidence of witnesses. By analogy, it has recently been acknowledged that in appeals against convictions in the Local Court, this Court is entitled to place significant weight, for example, upon demeanour-based credibility findings made by a Magistrate (McNab v DPP (NSW) (2021) 106 NSWLR 430).

31. The desirability of the Local Court conducting a hearing on the merits before parties exercise rights of appeal to this Court is simply demonstrated by what would occur if this Court determined the admissibility point adversely to Mr Dillon. Mr Dillon might possibly wish to either contest the Commissioner’s evidence, or even adduce his own evidence; for example, about the matters set out in s 5(3)(i) of the CPOPO Act; which evidence might be challenged by the Commissioner. Mr Dillon has not undertaken to this Court that he would not want the opportunity to put on such evidence (which would appear to be fresh evidence) and he should not be required to do so. Although he might need this Court’s leave to rely upon fresh evidence, it is not inarguable that he would be granted leave to do so given that consent orders were made in the Local Court without a hearing on the merits and, necessarily, without his having needed to adduce evidence in the Local Court.

32. But even if Mr Dillon did not seek to rely upon fresh evidence, if his admissibility point failed, this Court would be left to engage in an evaluation of the s 5(3) factors, and left with considering for itself, and without the assistance, or guidance, from a decision in the Local Court at first instance, of the merits of the appeal. In particular, it would have to evaluate for itself all of the matters contained in s 5(3) of the CPOPO Act which Parliament has clearly intended to be a fact-finding function to be vested in the Local Court.

33. The structure of appellate rights suggest that it is inapposite for this Court, in its appellate jurisdiction, to be engaged in merits-based fact finding. This Court’s function, in the present context, is to correct error and it does so even though the categories of error are broad and even if the Court must decide for itself, bearing in mind the nature of the appeal as a rehearing, whether the Local Court’s decision is correct. Thereafter a dissatisfied party is limited to engaging, if appropriate, the supervisory jurisdiction of the Supreme Court. But the dissatisfied party would have no forum to contest any merit-based finding engaged in by this Court. This explains why it is the Local Court that should be engaged in consideration of the merits; with the parties’ rights protected by appeal to this Court on the basis of a potential range of errors (including, but not limited to, factual error) with the prospect finally of the Supreme Court’s supervisory jurisdiction.

34. By reason of the common position of the parties in the Local Court, in this case a contest on the merits did not occur. If the admissibility point which Mr Dillon raises is decided against him, the consequence will be that this Court would be required to decide the merits of the dispute. Even if the admissibility point was decided in Mr Dillon’s favour, the Court would still be engaged in a sort of summary inquiry whether there is, effectively, a case for him to answer. That is not a function appropriate for this Court’s appellate jurisdiction.

35. For these reasons and, as the parties now commonly accept, it is unnecessary to consider Ground 2.

Orders

36. The appeal is allowed.

37. The orders made by the Blacktown Local Court on 30 January 2023 are set aside and the dispute is remitted to the Blacktown Local Court for redetermination in accordance with the law.

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Endnotes

Decision last updated: 15 September 2023