Miller v Senior Constable Suzanne Newton
[2016] QCA 116
•4 May 2016
SUPREME COURT OF QUEENSLAND
CITATION:
Miller v Senior Constable Suzanne Newton [2016] QCA 116
PARTIES:
MILLER, Paul George
(applicant)
v
SENIOR CONSTABLE SUZANNE NEWTON
(respondent)FILE NO/S:
CA No 122 of 2015
DC No 128 of 2013DIVISION:
Court of Appeal
PROCEEDING:
Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:
District Court at Ipswich – Date of Conviction: 12 May 2015DELIVERED ON:
4 May 2016
DELIVERED AT:
Brisbane
HEARING DATE:
11 February 2016
JUDGES:
Holmes CJ and Gotterson JA and Jackson J
Separate reasons for judgment of each member of the Court, each concurring as to the order madeORDER:
Application for leave to appeal against conviction refused.
CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – where the applicant was convicted on appeal to the District Court of failing to comply with his reporting obligations as a reportable offender under s 58(1) of the Child Protection (Offender Reporting) Act 2004 (Qld) – where the offences were committed in New South Wales – where the applicant resided in Queensland – where the Queensland Act defined a “reportable offender” as including a “New South Wales reportable offender” – where the expression corresponding to “reportable offender” in the Child Protection (Offenders Registration) Act 2000 (NSW) was “registrable person” – where s 77 of the Queensland Act provided that a certificate certifying as to details contained in the Queensland Register was evidence of those details and made a certificate given under s 21A of the New South Wales Act evidence of the facts stated in it – whether a certificate made under s 21A of the New South Wales Act stated facts which could be relied on to make out the charge – whether a certificate tendered under s 77 of the Queensland Act contained sufficient detail to prove the offences
Child Protection (Offender Reporting) Act 2004 (Qld), s 58(1), s 77
Child Protection (Offenders Registration) Act 2000 (NSW), s 21ACOUNSEL:
The applicant appeared on his own behalf
M Cowan QC for the respondentSOLICITORS:
The applicant appeared on his own behalf
Director of Public Prosecutions (Queensland) for the respondent
HOLMES CJ: A magistrate found the applicant not guilty of four charges of failing to comply with reporting obligations under s 58(1) of the Child Protection (Offender Reporting) Act 2004. Her Honour was not satisfied that he was a “reportable offender”, because the evidence before her did not establish that he had committed offences involving children. On the complainant’s appeal to the District Court, the acquittals were set aside and convictions were recorded, the District Court judge concluding that certificates given under the equivalent New South Wales Act established, in the absence of evidence to the contrary, that the applicant was a reportable offender. The applicant now seeks leave to appeal against the District Court judge’s decision.
The only legislation relevant on this appeal being the Child Protection (Offender Reporting) Act 2004 (Qld) and the Child Protection (Offenders Registration) Act 2000 (NSW), I will refer to those Acts respectively as the Queensland Act and the New South Wales Act. The relevant versions of the legislation are those extant at the date of the charged offences (November 2009 – December 2010) and at the date of the Magistrates Court hearing (July and November 2013).
The relevant legislative provisions
The applicant was charged under s 50 of the Queensland Act, which makes it an offence for a “reportable offender” to fail to comply with his reporting obligations. He had been convicted of sexual offences in New South Wales and had moved to reside in Queensland on his release from custody in the former State. Section 5(1) of the Queensland Act defines “reportable offender” as including “a New South Wales reportable offender”[1], a term which is further defined in s 8(1) as
“a person who had been in New South Wales at a time before the date stated in a regulation for the purposes of this section and whose reporting obligations under the New South Wales Act had begun at that time, other than a person whom a regulation prescribes not to be a New South Wales reportable offender for this Act.”[2]
In the New South Wales Act, the expression corresponding to “reportable offender” is “registrable person”.[3]
[1]Section 5(1)(b)(iii).
[2]The relevant regulation is s 5 of the Child Protection (Offender Reporting) Regulation 2004 which prescribes the date as 1 January 2005.
[3]Section 3A Child Protection (Offenders Registration) Act.
At the time of the hearings the Magistrates Court, s 77 of the Queensland Act provided in the following terms for certificates with evidentiary status[4]:
[4]The provision was subsequently altered to give evidentiary effect to a statement in a complaint of the matters previously requiring a certificate.
“Evidence certificates
(1)In proceedings under this Act, a certificate signed by the police commissioner, or a police officer holding a position designated in writing by the police commissioner for the purposes of this section, certifying that the register—
(a)at any particular date contained information in the certificate; or
(b)indicated that, during any particular period, a specified person failed to notify information as required by this Act;
is evidence of the details in the certificate.
…
(3)For this Act, a certificate that would be evidence under a corresponding Act that at a specified time, or during a specified period, a person was required to report to a corresponding registrar under that Act is evidence of the facts stated in the certificate.”
“Corresponding Act” was defined in the dictionary to the Act[5] as including a law of a foreign jurisdiction stated by regulation to be a “Corresponding Act”; the Child Protection (Offender Reporting) Regulation 2004 specified the New South Wales Act in that category. “Corresponding registrar” was defined as meaning “the person whose functions under a corresponding Act most closely correspond to the functions of the police commissioner under this Act”.
[5]Schedule 3.
Section 21A of the New South Wales Act is in similar, but not identical, terms. It is set out below, with the material differences in expression italicised:
“Certificate evidence
(1)In proceedings under this Act, a certificate signed by the Commissioner of Police, or a member of the NSW Police Force holding a position designated in writing by the Commissioner of Police for the purposes of this section, certifying that the Register:
(a)at any particular date contained information specified in the certificate; or
(b)indicated that, during any particular period, a specified person failed to notify information as required by this Act;
is evidence (unless evidence to the contrary is adduced) of the particulars certified in the certificate.
…
(3)For the purposes of this Act, a certificate that would be evidence under a corresponding Act that at a specified time, or during a specified period, a person was required to report to a corresponding registrar under that Act is evidence, and in the absence of evidence to the contrary is proof, of the facts stated in the certificate.”
The proceedings in the Magistrates Court
The four charges against the applicant concerned, respectively, his failures to make annual reports in November 2009 and November 2010 and his failure to report his departure from, and return to, Australia at the end of 2009 and the beginning of 2010. Under s 18 of the Queensland Act as it stood at those times, a reportable offender was required to report annually to the Police Commissioner. It was necessary that such a report be made
“by the end of the calendar month in which the anniversary of the date on which the offender first reported under this Act, or a corresponding Act, [fell]”.[6]
[6]Section 18(2).
A police officer, Sergeant Caternach, gave evidence that on 17 November 2005, he had taken what he had described as the applicant’s “initial report” under the Queensland Act, and had informed him that he was obliged to report annually every year thereafter. He identified a copy of the document, described as a “Receipt”; it was put into evidence. Signed by the applicant and dated 17 November 2005, it acknowledged that he had “given relevant personal information in accordance with Queensland legislation” and it set out personal details given for the purposes of the Australian National Child Offender Register. Under cross-examination, Sergeant Caternach agreed that it was “more than likely correct” that the applicant had been required to provide the report as a bail condition. Evidence was also adduced to show that the applicant had left Australia on 30 January 2010 and returned on 22 February 2010.
Certificates which were tendered under s 77(1) of the Queensland Act certified that the Queensland Child Protection Register stated that the applicant was listed as a reportable offender; that he had been sentenced for a reportable offence; that he had a reporting period of 15 years; that he had completed his initial report on 17 November 2005 and that his annual reporting month was November; and that there were no records of any annual reports made by him and no records of any report made in relation to travel overseas.
In addition, two certificates made under s 21A of the New South Wales Act were tendered. The later of them was evidently intended to correct an error in the first-issued certificate. The second and relevant certificate certified that the New South Wales Register of Offenders “indicated that” the applicant was a registrable person as defined under the New South Wales Act, having been sentenced in respect of registrable offences, namely five counts of aggravated sexual assault and one count of aggravated attempted sexual intercourse; that he had been incarcerated; and that he had been released from custody and had moved to Queensland. A copy of an indictment and a certificate of conviction setting out the charges were also tendered.
A solicitor appearing for the applicant formally admitted that the applicant had travelled internationally and returned without reporting that he had done so and that he had not reported as required of a reportable offender for the years ending 30 November 2009, 2010, 2011 and 2012. He informed the magistrate that, having made the admissions, the applicant would not otherwise give or call evidence. The only issue for the magistrate to determine was whether it had been proved that the applicant was a reportable offender. It was conceded that if the applicant were a registrable person for the purposes of the New South Wales Act, the Queensland Act would have applied to him from its commencement on 1 January 2005.
The argument for the applicant was that he had not been proved to be a “registrable person” as defined in the New South Wales Act. Under that Act, the status of registrable person depended on offences having been committed against a child. There was no evidence that the applicant had committed such offences: none of the tendered documents – the relevant certificate under s 21A of the New South Wales Act, the certificate of conviction and the indictment - specified that the relevant offences involved a child. The s 21A certificate did not of itself prove that he was a registrable person: it proved only that the New South Wales Register contained information to that effect, so that the magistrate could not be satisfied beyond reasonable doubt on the strength of that document.
Despite his initial intimation that the sole issue was whether the applicant was a reportable offender, the applicant’s solicitor added an argument: that when the applicant moved to Queensland, the Queensland Act did not prescribe an initial reporting date for him as a New South Wales reportable offender. If there were no initial reporting obligation, there could be no requirement for him to report annually. When he did report in November 2005, it was because (having been charged with a failure to report) he was subject to a bail condition requiring him to report in accordance with the Queensland Act. His reporting under that compulsion should not be regarded as done under the Queensland Act.
The magistrate accepted the submission that because there was no evidence that the applicant had committed any offence involving a child, she could not be satisfied that he was a reportable offender. Her Honour did not make any reference to the effect of the certificates under either the Queensland Act or the New South Wales Act. Nor did she consider the remaining argument for the applicant, as to whether there was an annual reporting requirement. Because of what she regarded as a lack of proof beyond reasonable doubt that he was a reportable offender, she acquitted him of all charges.
The District Court appeal
The complainant’s appeal of that decision to the District Court under s 222 of the Justices Act 1886 proceeded as a re-hearing on the evidence before the magistrate,[7] with no application to adduce further evidence. The complainant’s submissions seem to have focused on the evidentiary status of the s 21A certificate, and the District Court judge’s decision was similarly focused. Counsel for the complainant submitted that the s 21A certificate was evidence of the particulars certified in the certificate; the respondent in answer reiterated the argument that the s 21A certificate was evidence only of what the register contained, not evidence of the acts asserted in the register. The District Court judge in her judgment[8] described the certificate as “admitted under s 21A of the Child Protection (Offenders Registration) Act 2000 (NSW)”. She went on to draw a distinction between what she described as the certificate “tendered pursuant to s 77A of the Act” and the s 21A certificate, observing in respect of the former,
“the argument that the certificate merely states what is written on the register is somewhat supported by the wording of the certificate”.
Section 21A, her Honour considered, was in stronger terms because it provided that the certificate to the effect that the register contained certain information was evidence, in the absence of evidence to the contrary, of the particulars certified in it; in this case, that the respondent was a registrable person, had been incarcerated, moved to Queensland and was managed in this State under the local register. This raised a “rebuttable presumption that the particulars are evidence of his status in New South Wales”.[9]
[7] Justices Act s 223.
[8] Newton v Miller [2015] QDC, unreported, Richards DCJ, DC No 128 of 2013, 12 May 2015.
[9]At [18].
Her Honour’s conclusions were as follows:
“[20] In my view the wording of s 21A of the New South Wales Act is such that it establishes a presumption that the evidence of the particulars in the certificate are correct unless evidence to the contrary is adduced and therefore in terms of that certificate, in the absence of any other evidence at all other than the respondent's blanket refusal to acknowledge he was a reportable offender, the case was proven in terms of the New South Wales certificate.
[21]What follows then in terms of the New South Wales certificate is that, pursuant to subsection (3) of s 77:
‘For this Act, a certificate that would be evidence under a corresponding Act that at a specified time, or during a specified period, a person was required to report to a corresponding registrar under that Act is evidence of the facts stated in the certificate.’
means that the evidence of that certificate is evidence that he was required to report under the New South Wales legislation and therefore under s 8 is in fact a reportable offender under the Queensland Act.
[22]The issue of the Queensland certificate supports that fact that he was designated a reportable offender under the New South Wales Act and the fact of his presence on the register together with the combination of the evidentiary provisions in the Acts was sufficient proof of his status, in the absence of any evidence to the contrary. Having made formal admissions to the other elements of the charges, there was overwhelming evidence of his guilt and he should have been convicted of the offences.”
The proposed appeal grounds
The applicant sought leave to appeal on the ground that the District Court judge erred in reaching the conclusions set out at paras [20] and [21] of her judgment. In oral submissions, he relied not only on his solicitor’s argument made in the Magistrates Court as to the limited effect of the s 21A certificate, but also on the argument about whether he could be regarded as having made an “initial report” in November 2005, something not explored before the District Court judge. In the context of the latter argument he pointed out that a police witness, Constable Jones, when asked under cross-examination about the initial reporting month, had said that he “believe[d] it was May…”. In any event he had been acquitted on the charge in relation to the bail condition which had required him to report, so that condition was no longer operative. In addition, he asserted that he had not been convicted of an offence against a minor and should not be on either Register.
Conclusions
In my view, the District Court judge did err as to the evidentiary effect of the certificate given under s 21A of the New South Wales Act. The language of her Honour’s judgment suggests that she may have regarded s 21A as having some direct application in the proceedings before her. However, its only status was that given by s 77(3) of the Queensland Act. That is to say, if it could be shown that the certificate would be evidence under the New South Wales Act that a person was required to report to a corresponding registrar under that Act, it would become evidence of the facts stated in it for the purposes of the Queensland proceedings. Section 21A was thus only relevant for consideration of whether the certificate met the condition of providing evidence under the New South Wales Act so as make s 77(3) applicable to it.
For the purposes of any proceedings in New South Wales, a certificate signed by an officer authorised under the section containing particulars such as that in the certificate here – that the applicant was a registrable person, had been sentenced and imprisoned in respect of registrable offences and had been released from custody in September 2003 – would constitute evidence of those particulars in the absence of evidence to the contrary. But that was not true for proceedings in Queensland. The certificate would provide some evidence under the New South Wales Act that the applicant was required to report to a corresponding registrar (given his registrable status and his release from custody). It would thus answer the description in s 77(3); that made it evidence, not of the particulars certified, but of the facts stated in it.
The distinction is, in my view, critical. The particulars certified in the s 21A certificate are those I have set out in the preceding paragraph. The only fact stated in the certificate is that the Register of Offenders contained those particulars; but that did not make the particulars (as opposed to the fact that they were contained in the Register) evidence. That being so, the argument made on the applicant’s behalf in the District Court was correct. However, I would nonetheless refuse leave to appeal against the convictions, because the certificates given under the Queensland Act were sufficient, in combination with the admissions made, to prove the case against the applicant.
Section 77(1) makes a certificate that the register contained information at a given date “evidence of the details in the certificate”. In context, “the details” given evidentiary status can only be those set out as contained in the register. In this case, the details taken from the register included that the applicant was a “reportable offender”; had a reporting period of 15 years; had provided an initial report on 17 November 2005 and was not shown to have made any annual report or report in respect of overseas travel. The certificate then became evidence of those details, which were sufficient to prove the charges and make findings of guilt inevitable.
As to the other matters raised by the applicant, the reporting obligation under s 50 of the Queensland Act did not depend on there being an obligation to make an initial report in Queensland. Section 18(2) of the Queensland Act required a report by the end of the calendar month containing “the anniversary of the date on which the offender first reported under this Act or a corresponding Act”. In the present case, the applicant had first reported under the Queensland Act in November 2005. It is beside the point that he may have done so in compliance with a bail condition; the report was made for the purposes of, and under, the Queensland Act. Equally, it is irrelevant that the bail condition ceased in operation. The reference by Constable Jones to a different date for the making of the report is of no weight; he was not the officer to whom the report had been made (that was Sergeant Caternach, who confirmed that it was November 2005) but had merely served some documents on the applicant in 2011. And, finally, whether the applicant had as a matter of fact offended against children and correctly been included on the registers was not in issue at either hearing below, and cannot be explored in this court.
The District Court judge’s decision, despite her Honour’s reliance on the wrong certificate, entailed no substantial injustice to the applicant; the same outcome would have been reached by reference to the information in the Queensland certificates. For that reason, I would refuse the application for leave to appeal against conviction.
GOTTERSON JA: I agree with the order proposed by Holmes CJ and with the reasons given by her Honour.
JACKSON J: I agree with the Chief Justice.
0
2