Police v Curan

[2023] NSWLC 14

Local Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Police v Curan [2023] NSWLC 14

Hearing dates:

5 September 2023

Date of orders:

13 September 2023

Decision date:

13 September 2023

Jurisdiction:

Criminal

Before:

LCM Olischlager

Decision:

Verdict Not Guilty Sequence 1 & 2

Catchwords:

Crime, child protection, reporting obligations, obligation to report membership of registered clubs

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW)

Interpretation Act 1987 (NSW)

Child Protection (Offenders Registration) Amendment Act 2004 (NSW)

Cases Cited:

The Queenv A2 (2019) 373 ALR 214; [2019] HCA 35

Category:

Principal judgment

Parties:

Police (Prosecutor)

John Curan (Defendant)

Representation:

Prosecutor: Sgt Harvey

Defendant: Mr Bright

File Number(s):

2023/0004462

Publication restriction:

Nil

Judgment

1. Mr Curan pleaded not guilty to two charges of fail to comply with reporting obligations pursuant to section 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW) (‘the Act’). The offence carries a maximum penalty of up to five years of imprisonment.

2. The particulars of the two charges are as follows.

Sequence One

3. That between 7am on 1 June 2018 and 6pm on 15 June 2018, Mr Curan failed to comply with his reporting obligations under the Act in that he failed to disclose that he was a member of Cardiff RSL, Wests Leagues Club and Club Macquarie.

Sequence Two

4. That between 6am on 11 October 2018 and 18 October 2018, Mr Curan failed to comply with his reporting obligations under the Act in that he failed to disclose that he was a member of Souths Rugby League Club at Merewether.

Agreed Facts

5. There are several agreed facts between the parties.

6. There is no dispute that Mr Curan was a registrable person under the Act as from 1 June 2018 and was required to comply with reporting obligations.

7. There is no dispute that Mr Curan was a registered member of the licensed clubs identified in the particulars of the charges at the relevant times.

8. There is also no dispute that the information of his membership with those clubs was not recorded in any form completed either by Mr Curan or police officers in relation to the particulars of his registration under the Act.

9. There is no dispute that the Register records no Club details under the heading of Affiliations with Clubs/Organisations.

10. The officer in charge, Senior Constable Keiselis, gave evidence that he had been the co-ordinator for the Child Protection Register at Lake Macquarie for the past two years. He carried out a review of Mr Curan’s registration in 2022. During the course of that review, he identified the absence of any record of disclosure of membership with any of the Clubs listed.

11. Mr Curan gave evidence that at the time of his initial report to police in June 2018, he verbally disclosed his membership to Cardiff RSL, Wests Leagues Club and Club Macquarie to the interviewing police officer. Mr Curan gave evidence that the interviewing officer responded that licensed Clubs do not need to be disclosed and that the information was not recorded on any form. Mr Curan stated that, when he subsequently joined Souths Leagues Club in October 2018, he did not disclose that membership believing, based on the earlier advice, that no disclosure was required. The police officer to whom Mr Curan referred to has not been identified.

12. Section 17(1) of the Act provides that a registrable person must not fail to comply with any of the person’s reporting obligations without reasonable excuse.

13. The prosecution is required to prove beyond reasonable doubt all the elements of an offence under section 17(1) of the Act. Those elements are that Mr Curan:

1. Was subject to reporting obligations under the Act;

2. Failed to comply with those obligations; and

3. Did so without reasonable excuse

14. Submissions were made on behalf of Mr Curan to the effect that he did not fail to comply with the obligations under the Act as he was not obliged to report his membership with these Clubs.

15. Alternatively, it was submitted that if Mr Curan was obliged to report his membership for the Clubs, he did so orally in June 2018 for the Clubs referred to in Sequence 1, and in relation to Sequence 2 he had a reasonable excuse for failing to report this information, which was based on the advice received from a police officer in June 2018, allegedly that he (Mr Curan) was not required to report membership with licensed registered Clubs.

16. The Child Protection (Offenders Registration) Act 2000 Part 3, Division 2, outlines the personal information that is to be reported by a registrable person at the time of the initial report. Section 9(1) of the Act lists the relevant personal information to be reported. Relevantly that section includes:

9   Relevant personal information to be reported

(g) details of the person’s affiliation with any club or organisation that has child membership or child participation in its activities,

17. Section 11(1)(b) of the Act requires a registrable person to report to the Commissioner of Police any change in the person’s relevant personal information, either in the case of a change in information referred to in section 9(1)(e) within 24 hours after the change occurs, or in any other case, within 7 days after the change occurs.

18. The prosecution relied upon the evidence of Mr Willis, who is employed by Souths Leagues Club, and Mr Balchin, who is employed by Cardiff RSL, to provide evidence regarding the nature of the Clubs to establish that these were Clubs to which the reporting obligations under the Act applied.

19. Both prosecution witnesses gave similar evidence that the Clubs do not permit children to be members and that any child entering into the Clubs must be accompanied by an adult member or guest. Evidence was given that each Club has a play area set aside for children, however, an adult member or guest is required to supervise any child using those facilities. Both witnesses gave evidence that each Club sponsors various junior sporting associations and presentations, and that functions are held within each Club for these junior sporting associations at which children attend.

20. Both witnesses gave evidence that those sporting associations are separate from each Club with separate governing boards. The junior sporting associations are not part of the structure of the Clubs and while the Clubs support those associations, they are separate entities.

21. The objectives of the Child Protection (Offenders Registration) Act 2000 were described by Mr Whelan MP Minister for Police during the second reading of the Bill in the Legislative Assembly (Hansard L.A 1 June 2000 page 6475).

“It will increase, and improve the accuracy of, police child sex offender intelligence; assist in the investigation and prosecution of child sex offences committed by recidivist offenders; provide a deterrent to reoffending; assist police from New South Wales and other jurisdictions in monitoring high risk child sex offenders; assist in the management of child sex offenders in the community; provide child abuse victims and their families with an increased sense of security; and assist police to enforce the Child Protection (Prohibited Employment) Act 1998 and the Crimes Legislation Amendment (Child Sexual Offences) Act 1998.”

22. The obligation to report upon the details of affiliations with any club or organisation that has child membership or child participation in its activities was introduced to the principal Act by the Child Protection (Offenders Registration) Amendment Act 2004 (NSW). The amendment was made as part of a raft of reforms intended to strengthen the integrity of the register. The second reading speech delivered in the Legislative Assembly dated 25 November 2004, lists this obligation together with a number of matters as additional information that registrable persons will be required to report. There was no further debate regarding the object of this specific amendment.

23. Neither party was able to provide any caselaw that involved a consideration of the extent of the obligation under section 9(1)(g) of the Act.

24. The prosecution submits that the reporting obligation under section 9(1)(g) extends to reporting the membership of registered licensed Clubs on the grounds that those Clubs, while not permitting child membership, are Clubs which have “child participation in its activities” through designated play areas and the support that is provided to junior sports, with sponsorship and functions held at the clubs.

25. The defence submits that the reporting obligation does not extend to these registered licensed Clubs on the grounds that those Clubs prohibit child membership and that the activities of the Clubs do not involve child participation.

Consideration

26. Section 33 of the Interpretation Act 1987 (NSW) provides that:

33   Regard to be had to purposes or objects of Acts and statutory rules

In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.

27. In The Queen v A2 (2019) 373 ALR 214; [2019] HCA 35, Kiefel CJ and Keane J said:

“[32] The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words have an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.

[33] Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. “Mischief” is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.

…

[52] A statutory offence provision is to be construed by reference to the ordinary rules of construction. The old rule, that statutes creating offences should be strictly construed, has lost much of its importance. It is nevertheless accepted that offence provisions may have serious consequences. This suggests the need for caution in accepting any “loose” construction of an offence provision. The language of a penal provision should not be unduly stretched or extended. Any real ambiguity as to meaning is to be resolved in favour of an accused. An ambiguity which calls for such resolution is, however, one which persists after the application of the ordinary rules of construction.”

28. There is no issue that the Clubs particularised do not permit child membership. The question for determination is whether these Clubs have “child participation in its activities” within the meaning of section 9(1)(g) Child Protection (Offenders Registration) Act 2000.

Reasons for Determination

29. For the following reasons, I am satisfied that the Clubs do not have “child participation in its activities” and, accordingly, there was no obligation on the part of Mr Curan to report his membership to police.

First – Construction of the Phrase “Child Participation in its Activities”

30. As a matter of language, the phrase “child participation in its activities” refers to the Club’s activities. The ordinary meaning of the word “activities” is the things that a person or a group does. The focus of the inquiry therefore is what does the Club do and whether children participate in what the Club does.

31. Each of the Clubs identified engage in the activity of sponsorship. Children do not engage in the activity of sponsorship by the Club, rather they are the potential recipients of the benefit of the Club’s activity. Similarly, while the Clubs provide the facilities to enable presentation functions to be held by other clubs that have children participation, the Clubs themselves do not engage in the activity of holding functions.

32. In relation to the provision of designated children play areas within the Clubs, the Clubs do not engage in any activity. Rather the designated play areas are a facility available to be used by children under the supervision of adults, not the Club. The role of the Club is passive rather than active.

33. On a proper construction of section 9(1)(g) children do not participate in the activities of these Clubs.

Second – Registrable Person Reporting Requirement

34. The requirement for a registrable person to report that they are a member of a licensed Club such as those particularised in the present case would not promote the objectives of the Child Protection (Offenders Registration) Act 2000. Where children participate in junior sporting or recreational clubs there is a clear protective purpose for police being informed that a child sex offender is a member of that Club. The potential for unsupervised interaction by registrable persons with children is a significant concern. Where the Club is a licensed premise which requires adult supervision of children allowed onto the premises these concerns are diminished.

Third – Reporting of Membership

35. The reporting of membership of a licensed Club would not enhance the management of registrable persons in the community, as registrable persons may attend these Clubs without membership either as temporary members or as guests of members.

Fourth – Consistency in Reporting Obligations

36. The proposition that registrable persons are under an obligation to report their membership with a licensed Club contrasts with the lack of obligation to report affiliations with other entities providing similar services. Many hotels, restaurants and cafés have designated child play areas or host party functions, some of which are specifically targeted towards children or families. None of these entities are subject to reporting obligations under the Act. The obligation to report membership to a licensed Club would result in an arbitrary application of the Act. Finally, if there remains some ambiguity on the issue as to whether registrable persons are under an obligation to report that they are a member of the licensed Clubs particularised, then that ambiguity should be resolved in favour of Mr Curan. The breach of reporting obligation carries a significant maximum penalty of up to five years imprisonment. The scope of those reporting obligations should be clear and unambiguous.

37. The finding that Mr Curan is not under an obligation to report membership to police of the Clubs particularised in the charges effectively disposes the matters and the Court will enter verdicts of not guilty.

Alternative Submissions

38. Notwithstanding this, for the sake of completeness, the Court addresses the alternative submissions on behalf of Mr Curan.

39. Assuming the Court is wrong in its view that there was no obligation to report his membership, the prosecution has failed to establish the second and third elements of the offence beyond reasonable doubt.

40. I accept Mr Curan’s unchallenged evidence that he did orally disclose his membership to police of the Clubs referred to in Sequence 1 at the time of his initial report. I am satisfied that it is likely that the police officer at that time provided advice that it was not information required to be recorded in the Forms completed by Mr Curan.

41. Mr Curan appears to have been candid in all his other dealings with police in meeting his obligations under the Act. It is difficult to understand why he would not have been similarly candid in relation to disclosing his membership of licensed Clubs.

42. In relation to Sequence 2, I accept Mr Curan’s evidence that, based on the advice he received from a police officer during his initial report, he formed the view that it was unnecessary to disclose his membership with Souths Rugby League Cub. Relying on the advice provided by a police officer constituted reasonable excuse for the non-disclosure.

43. In relation to both Sequence 1 and 2, the defendant is not guilty.

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Amendments

26 August 2024 - Amended coversheet fields.

Decision last updated: 26 August 2024