DKG v Commissioner of Police

[2023] NSWCA 46

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

DKG v Commissioner of Police [2023] NSWCA 46

Hearing dates:

16 March 2023

Decision date:

23 March 2023

Before:

Ward P at [1]; Adamson JA at [2]

Decision:

(1)   Extend the time for filing the summons seeking leave to appeal to 27 June 2022.

(2)   Refuse leave to appeal.

(3)   Grant leave to the respondent to apply for an order for the costs of the application, such application to be made within 7 days.

Catchwords:

CRIME — Appeals — Appeal against conviction in Local Court — Extension of time in which to appeal — application for relief beyond jurisdiction of Court — no arguable error in summary dismissal of claim

CRIME — Appeals — limitations on arguing points on appeal which were not run in Court below — charge defended in Local Court on basis of no sexual touching — alleged challenge to conviction on basis of consent and no act of indecency

Legislation Cited:

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 9

Australian Passports Act 2005 (Cth), s 12

Child Protection(Offenders Registration) Act 2000 (NSW)

Crimes (Appeal andReview) Act 2001 (NSW), Part 5, ss 11, 13, 52, 53, 78

Crimes Act 1900 (NSW), s 61L

Criminal Code Act 1995 (Cth), s 27A.1

Supreme Court Act 1970 (NSW), s 101

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 51.10

Cases Cited:

Secretary, Dept of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46

Category:

Procedural rulings

Parties:

DKG (Applicant)
Commissioner of Police (Respondent)

Representation:

Counsel:
Self-represented (Applicant)
G Keesing (Respondent)

Solicitors:
Not applicable (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s):

2022/329092

Publication restriction:

Publication of names and any information or material that may lead to the identification of the applicant is prohibited: Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

DKG v Commissioner of Police [2019] NSWSC 523

Date of Decision:

10 May 2019

Before:

Fagan J

File Number(s):

2018/275293

JUDGMENT

1. WARD P: I agree with Adamson JA.

2. ADAMSON JA: DKG (the applicant) seeks an extension of time for leave to appeal and, if the extension of time is granted, leave to appeal against the decision of Fagan J (the primary judge), who dismissed both his amended summons filed 24 September 2018 and a notice of motion seeking leave to file a further amended summons. The respondent to the appeal is the Commissioner of Police (the respondent), for whom Ms Keesing appeared.

3. The applicant, who is presently in custody, informed the Court in writing (by facsimile sent on 14 March 2023) that he was content for the matter to be dealt with on the papers, without any appearance by him. As he did not communicate with the respondent’s representatives, Ms Keesing appeared at the hearing of the application which was listed to commence at 2pm on 16 March 2023. Ms Keesing indicated that she did not wish to be heard and was content that the matter be dealt with on the papers.

4. The applicant requires an extension of time pursuant to r 51.10(2) of the Uniform Civil Procedure Rules 2005 (NSW), as his summons seeking leave was filed out of time (the order for his conviction having been made on 7 June 2019). In the facsimile dated 14 March 2023 (referred to above), the applicant referred to documents which he had sent to the Court which related to his application for an extension of time. As no such documents have been received by the Court, I propose first to address whether leave ought be granted, on the assumption that no extension of time is required. If I consider that leave ought not be granted in any event, it will not be necessary to address the application for an extension of time. The paragraph references are references to paragraphs in the primary judge’s reasons.

5. The primary judge treated the amended summons as an application for leave to appeal under Part 5 (specifically ss 52 and 53) of the Crimes (Appeal andReview) Act 2001 (NSW): [10]-[11], [19], [55]. It was dealt with and dismissed on that basis: [17]-[19], [22], [55]. The balance of the decision and the primary judge’s orders are, accordingly, interlocutory. Leave is therefore required in relation to the totality of the proposed appeal: Supreme Court Act 1970 (NSW), ss 101(2)(e) and 101(2)(h).

6. In order to determine whether leave ought be granted, the principle expressed by Gleeson JA (Macfarlan and Payne JJA agreeing) in Secretary, Dept of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28] applies:

“Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.”

[Citations and footnotes omitted.]

7. Before turning to the question whether leave ought be granted, I propose to summarise the procedural history of the matter, as referred to by the primary judge.

The proceedings before the primary judge

The applicant’s claims for relief

8. By amended summons filed in the Supreme Court on 24 September 2018, the applicant sought orders that his conviction in the Local Court of assault with an act of indecency under s 61L of the Crimes Act 1900 (NSW) (as then in force) be quashed and that his name be removed from the Child Protection Register (the Register) maintained under the Child Protection(Offenders Registration) Act 2000 (NSW) (Child Protection Act).

9. The applicant also sought, by notice of motion, leave to file a further amended summons which added as parties to the proceedings the Director of Public Prosecutions (NSW) (DPP) and the Commonwealth Department of Foreign Affairs and Trade (DFAT) and added claims for relief that: he be granted an extension of time for leave to appeal against his conviction in the Local Court pursuant to s 53 of the Crimes (Appeal and Review) Act 2001 (NSW); his Australian Passport be reissued; and he be awarded damages as a result of his having been refused permission to travel overseas.

The primary judge’s reasons

The procedural history

10. The primary judge recounted the procedural history of the matter, which can be shortly summarised.

11. On 28 April 2016, the applicant was found guilty by the Local Court at Manly of assault with an act of indecency contrary to s 61L of the Crimes Act 1900 (NSW), as then in force: [1]. An order for his conviction was made on 7 June 2016. As the victim of the assault was a 17-year-old woman, the applicant, upon being sentenced, became a “registrable person”. The respondent was obliged by the Child Protection Act to enter the applicant’s name on the Register maintained under that Act: [1] and [23]-[26].

12. As a person on the Register, the applicant is prohibited from travelling overseas without the permission of the respondent, who is the relevant “competent authority” pursuant to s 271A.1 of the Criminal Code Act 1995 (Cth) (Criminal Code): [34]-[39].

13. On 3 November 2017, the applicant filed an application in the District Court for leave to appeal his conviction, which was listed on 5 February 2018. As the application was 14 months out of time, it could not be dealt with as the District Court had no jurisdiction to entertain any such application filed after 7 September 2016 (there being an absolute 3-month limit from the date of conviction, 7 June 2016): ss 11 and 13 of the Crimes (Appeal and Review) Act: [20]-[21].

14. On 11 June 2018, following the refusal of permission by a delegate of the respondent for the applicant to travel overseas, the applicant nevertheless sought to leave the country. He was stopped at the airport and his passport was confiscated. The following day, he was notified that Commander Kerlatec (as the respondent’s agent) was considering making a request under s 12(1A) of the Australian Passports Act 2005 (Cth) to the Minister to cancel his passport. This eventuated and the applicant’s passport was cancelled: [45]-[48].

15. On 16 July 2018, the applicant applied to the NSW Civil and Administrative Tribunal (NCAT) for review of the respondent’s delegate’s decision to refuse him permission to travel overseas; the Minister’s decision to cancel his passport; and the inclusion of his name on the Register. Senior Member Lucy dismissed the application on 30 August 2018: [49].

16. On 7 September 2018, the applicant filed a summons in the Supreme Court which named the “NSW Police” and the “Australian Federal Police” as defendants and sought “review of convictions and sentences under s 78 of the Crimes (Appeal and Review) Act”: [2]. Subsequently, on 24 September 2018 the applicant filed an amended summons against the NSW Police and the Office of the Children’s Guardian claiming orders that his conviction be quashed and that his name be removed from the Register.

17. The amended summons was the operative document on which the applicant’s claims were litigated in the Court below, and in respect of which judgment was delivered on 10 May 2019: [2].

18. I note for completeness that the applicant has taken other procedural steps in other forums but it is not necessary to detail these as the present applications relate only to the primary judge’s decision of 10 May 2019.

The substantive application before the primary judge

19. The primary judge addressed the proceedings in the Local Court as follows:

“12    I have reviewed the entire transcript of proceedings in the Local Court. The witnesses for the prosecution were the officer in charge, the complainant and her boyfriend. An electronic recording of a police interview of the plaintiff was tendered and a transcript was provided to the Magistrate as an aide memoire. The plaintiff was the only witness in the defence case.

13    The complainant’s evidence was that at about 10:00 pm on the night in question she engaged the plaintiff at the Manly cab rank to drive her to Avalon. On the way the plaintiff invited her to join him for a drink or for dinner. As he made those suggestions he briefly stroked her bare arm. She was wearing a short T-shirt beach dress. The plaintiff then brushed the top of the complainant’s right thigh with his hand. The complainant declined his invitations to have a drink or a meal with him.

14    When the taxi was close to the complainant’s destination the plaintiff said, ‘Can I have a hug and a kiss before you go”. The complainant replied, ‘No’. The plaintiff pulled over and stopped the taxi, short of the destination. He again touched the complainant on the upper right thigh and leant across in an attempt to kiss her. She said, ‘If you don’t keep driving I’ll just get out now’. The plaintiff desisted and continued the journey. On arrival he asked the complainant for her phone number. She did not give it but instead invited him to enter his number into her phone. Police later used this to identify the plaintiff. The complainant was met by her boyfriend when she alighted from the taxi but did not immediately tell him what had occurred. She explained this on the basis that her boyfriend had ‘had a few drinks and I was worried like I did not want to like start a fight or anything’. The learned Magistrate expressly accepted this explanation of the lack of immediate complaint, in a passage towards the end of his reasons. The explanation gained credibility from the fact that the boyfriend was a 32-year-old man whom his Honour found was ‘enraged’ when the complainant told him next morning what had occurred.

15    The complaint was cross-examined to suggest that the plaintiff never touched her on the bare arm or on the upper thigh or leant across in an attempt to kiss her. The plaintiff gave evidence that he had not done any of those things. The learned Magistrate stated at the outset of his reasons for decision that the issue was whether it had been proved beyond reasonable doubt that the plaintiff touched the complainant as she alleged. His Honour said there had been no submission to the contrary of the proposition: that if the version as given by [the complainant] is to be accepted that the actions of the accused by reason of the touching of the arm and leg and the consequent then attempt to kiss amount at law to an assault and accompanied by an act of indecency.

16    His Honour noted that ‘what is in issue of course is … whether it happened at all’. The submissions of the parties were not transcribed. However there is no reason to doubt that the case was conducted on the issues as summarised in the reasons for decision. It was therefore quite unnecessary for his Honour to state the law with respect to the elements of non-consent and the accused’s awareness thereof. There is no deficiency in the learned Magistrate’s reasons in this regard, nor any error of law. His Honour accepted the complainant’s evidence and rejected that of the plaintiff for reasons given in detail, disclosing no apparent error. It was open to his Honour to be satisfied beyond reasonable doubt that the events recounted by the complainant occurred. Once those facts were found it followed from the absence of contest about the indecent character of the touching as alleged or about lack of consent that there was no basis upon which the learned Magistrate ought to have felt a reasonable doubt concerning any element.”

20. The primary judge refused leave to file the further amended summons because grounds (1)-(7) raised were neither viable nor had any prospect of success, having regard to the way in which the matter was conducted in the Local Court and the factual findings made by the Local Court, which had the advantage of seeing and hearing the witnesses: [17]-[19].

21. The primary judge also noted that the consequences of the conviction were that the applicant became a registrable person under the Child Protection Act, which had certain consequences mandated by the statute: [24]-[26]. The primary judge, at [27], concluded that there was no power in any court or administrative body to remove the applicant’s name from the Register.

22. The primary judge referred to the effect of s 271A.1 of the Criminal Code to prohibit overseas travel by a person such as the applicant unless a competent authority (in this case, the respondent) has given permission: [37]. The primary judge, at [42], noted that the Federal Court and Federal Circuit Court have jurisdiction to review such decisions under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) but that State Courts do not: s 9 of the ADJR Act.

23. At [50], the primary judge said, of the avenues for review available (and unavailable) to the applicant:

“I have stated above my conclusion that he has no avenue for review of the inclusion of his name on the Register. Nor is the cancellation of his passport by the Minister for Foreign Affairs, when requested by the Commissioner of Police, amenable to review in any tribunal. It is a step that the Minister is statutorily bound to take upon receipt of the request. However, the decisions of Mr Kerlatec to refuse the plaintiff permission to travel overseas and to request the Minister to cancel his passport are in my opinion reviewable under the ADJR Act. The plaintiff is a person aggrieved by each of those decisions within the meaning of s 5(1) of that Act and may apply to the Federal Court.”

24. The primary judge concluded, at [54], that the Supreme Court had no jurisdiction to grant relief in respect of the refusal of permission for the applicant to travel overseas or the re-issue of his Australian passport.

25. The primary judge noted, at [55], that the amended summons (which had been filed) also sought to challenge the conviction and sentence as well as to seek removal of the applicant’s name from the Register, permission to travel overseas and re-issue of the applicant’s passport. As none of those challenges warranted leave, since the relief the applicant sought was either not available at all or not available in the Supreme Court, the primary judge dismissed the summons pursuant to UCPR, r 13.4 (which provides for summary dismissal of frivolous or vexatious proceedings): [55], [58].

Consideration

26. The applicant, through his counsel, conducted the Local Court proceedings on the basis that he did not touch the complainant. In these circumstances, it was not open to the applicant to challenge his conviction on the basis that she consented to his touching her because he is bound by the conduct of his case by his counsel: TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [8] (Gleeson CJ). Nor was it open to him to challenge the finding that the touching amounted to an act of indecency, in circumstances where that matter was not challenged at first instance. The applicant has not raised any arguable ground of appeal against the primary judge’s refusal of leave to appeal against the conviction.

27. The applicant has expressed, in his written submissions, his grievance about the consequences of his conviction in the Local Court, which include limitations on his right to travel and to obtain work in certain areas. Many of these consequences, which are mandated by statute, arise from his name being on the Register. For the reasons given by the primary judge, neither this Court nor the Court below has jurisdiction to alter or ameliorate those consequences of his conviction. The applicant has not identified any arguable error in the primary judge’s reasons for dismissing the amended summons under UCPR, r 13.4.

28. In these circumstances, there is no proper basis to grant leave to appeal. Accordingly, it is not necessary to address whether time ought be extended for the applicant’s application for leave to appeal. In these circumstances, I propose to extend time in order that the leave application can be refused.

Costs

29. The respondent submits that the application ought be dismissed with costs. However, as the applicant has not been heard on the question of costs, I propose to make provision for the respondent to seek costs, if the respondent sees fit.

Proposed orders

30. For these reasons, I propose the following orders:

1. Extend the time for filing the summons seeking leave to appeal to 27 June 2022.

2. Refuse leave to appeal.

3. Grant leave to the respondent to apply for an order for the costs of the application, such application to be made within 7 days.

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Decision last updated: 23 March 2023