Police v JJ (a pseudonym)

Case •

[2022] NSWLC 17

•

23 September 2022

No judgment structure available for this case.

Local Court


New South Wales

Medium Neutral Citation: Police v JJ (a pseudonym) [2022] NSWLC 17
Hearing dates: 19, 20 and 21 September 2022
Date of orders: 23 September 2022
Decision date: 23 September 2022
Jurisdiction:Criminal
Before: Nash LCM
Decision:

Charge dismissed

Catchwords:

CRIME – allegation of failing to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) – internet service provider information – whether provision of incorrect or inaccurate relevant personal information to police by a registrable person constitutes an offence under s 17 of the Act – whether the Act permits a registrable person to notify a change in personal information in advance of the change coming into effect – whether ‘reasonable excuse’ established under s 17(2) of the Act

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW)

Court Suppression and Non-Publication Orders Act 2010 (NSW)

Evidence Act 1995 (NSW)

Cases Cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41

Aubrey v The Queen (2017) 260 CLR 305; [2017] HCA 18

Filip Black v Regina [2017] NSWDC 326

Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2020) 271 CLR 495; [2020] HCA 29

O'Neill v Commissioner of Police [2020] NSWSC 1805

R v A2; R v Magennis; R v Vaziri (2019) 269 CLR 507; [2019] HCA 35

Australian Securities and Investments Commission v King (2020) 270 CLR 1; [2020] HCA 4

Z v New South Wales Crime Commission (No 2) [2005] NSWSC 1388

Texts Cited:

Nil

Category:Principal judgment
Parties: Police (Prosecutor)
JJ (Defendant)
Representation:

Counsel:
Mr Ian Lloyd KC (Defendant)

Solicitors:
Sgt Parkin (Prosecutor)
Mitchell & Co Lawyers (Defendant)
File Number(s): 2020/262058
Publication restriction: In this judgment, the accused is referred to by a pseudonym, and information that could lead to the identification of the accused has been redacted.
The name of the accused is not to be published, nor is any other material that could lead to the identification of the accused: s 7 Court Suppression and Non-Publication Orders Act 2010

Judgment – REVISED FROM TRANSCRIPT

A.   INTRODUCTION

  1. These are my ex tempore reasons in the matter of JJ (a pseudonym), which I heard over the course of 3 days this week, being 19, 20 and 21 September 2022, sitting at the Downing Centre Local Court.  I am delivering these reasons today, 23 September 2022, without the benefit of a transcript of the evidence, and therefore I am relying on what are undoubtedly imperfect notes taken during the hearing of both the evidence and the parties' respective submissions.

  2. The accused is charged with one offence under s 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW) in that between 2 June 2020 and 26 August 2020 at [redacted], he did, without reasonable excuse, fail to comply with his reporting obligations under the Child Protection (Offenders Registration) Act 2000.  In these reasons I will simply refer to this legislation as ‘the Act’. 

  3. More particularly, it is alleged that the accused failed to provide details of a change in his relevant personal information, namely a change in the name of the internet service provider used, or intended to be used, by him, within seven days of the said change, contrary to s 11(1)(b) of the Act.

B.    RELEVANT LEGISLATION

  1. Before I summarise the evidence, which will explain the context for this allegation, I will identify the legislation relevant to the determination of the matter.  I start of course with s 17 of the Act.  It provides that:

(1) A registrable person must not fail to comply with any of the person's reporting obligations without reasonable excuse.

(2) In determining whether a registrable person had a reasonable excuse for failing to comply with the person’s reporting obligations, the court before which the proceedings are being heard is to have regard to the following matters—

(a) the person's age,

(b) whether the person has a disability that affects the person's ability to understand, or to comply with, those obligations,

(b1) whether the form of the notification given to the person as to the person's obligations was adequate to inform the person of those obligations, having regard to the person's circumstances,

(c) any matter prescribed by the regulations,

(d) any other matter the court considers appropriate.

(2A) In proceedings for an offence under this section, the onus of proving that a registrable person had a reasonable excuse lies with the person and must be proved on the balance of probabilities.

…

  1. The other relevant provisions of the Act which were referred to in the evidence and submissions were as follows.  I continue by referencing s 9, in and particular s 9(1)(n).  Section 9(1) relevantly provides:

(1) For the purposes of this Act, the "relevant personal information" to be reported by a registrable person consists of the following information—

...

(n) details of any internet service provider or provider of a carriage service (within the meaning of the Telecommunications Act 1997 of the Commonwealth) used, or intended to be used, by the person,

…

  1. Section 10 relevantly provides:

(1) A registrable person must report the person's relevant personal information to the Commissioner of Police each year.

…

  1. Section 11 relevantly provides:

(1) A registrable person must report to the Commissioner of Police any change in the person's relevant personal information—

…

(b) in any other case—within 7 days after the change occurs.

…

  1. Section 11F provides:

(1) This section applies if a registrable person intends to change the place where the registrable person generally resides.

…

(2) At least 14 days before changing the place, the registrable person must report the intended change to the Commissioner of Police and must provide details of—

(a) the address where the person proposes to generally reside, or

(b) if the person does not intend to reside at particular premises—the name of the locality of the place where the person intends to generally reside.

…

  1. Section 12A provides:

(1) A registrable person must make the following reports under this part in person—

(a) a report required by Div 2 (initial report),

(b) a report required by section 10 (annual report),

(c) a report of a change of address of the premises at which the person generally resides or, if the person does not generally reside at any particular premises, of the localities in which the person can generally be found,

(d) a report of the acquisition of, removal of, or change to, any tattoo or distinguishing mark.

(2) A registrable person may make any other report that the person is required to make in person or in any other way permitted by the regulations or by the Commissioner of Police, either generally or in a particular case.

…

  1. Section 12C provides:

(1) As soon as is practicable after receiving a report under this Part, the police officer or other person receiving the report must acknowledge the making of the report.

…

  1. Section 16C provides:

(1) One or more police officers may, without prior notice, enter and inspect any residential premises of a registrable person for the purpose of verifying any relevant personal information reported by the registrable person under section 9.

…

  1. Section 21A provides:

(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.

…

C.   CENTRAL ISSUES

  1. There was no issue in this case that the accused is and was a ‘registrable person’ for the purposes of the Act, and thus had reporting obligations under the Act, and, in particular, under ss 10 and 11 of the Act. In this respect, reference is made to Exhibit 8, being a certificate under s 21A(1) of the Act, further details of which I have described below at par [111].

  2. There was also no issue in this case that during the period specified for the charge period in the Court Attendance Notice, being 2 June 2020 to 26 August 2020, the accused was using the company known as ‘iiNet’ as his internet service provider while living at an address in [redacted]. He had not notified police of the name of that internet service provider until 26 August 2020.  The accused’s evidence, which I will outline shortly, was, in summary, that he had, rather, notified police that his internet service provider at the premises in [redacted] was ‘Telstra’, and that this was therefore incorrect information. He had notified this information to police on 19 May 2020 in circumstances where he had intended to (and ultimately did) lease the new residential premises in [redacted] after that date, being on and from 2 June 2020, and where the landlord of those premises had (wrongly) informed him that the internet service provider was Telstra.

  3. As my outline of the evidence will show, and based on the parties' respective submissions, the issues in this case can be very broadly stated as follows.

  4. Firstly, did the accused in fact provide details of the change in his relevant personal information, namely, the name of his internet service provider used, or intended to be used by him, at the new premises in [redacted], in fulfilment of his reporting obligations under the Act?

  5. Secondly, if he did not, did he have a ‘reasonable excuse’ for failing to provide this information, for the purposes of s 17(2) of the Act?

  6. Within these two broadly stated issues are several sub-issues which I will explain in more detail shortly. It suffices at this point to note that the 2 legal issues which will need to be addressed:

  1. Is it an offence under s 17 of the Act for a registrable person to provide police with incorrect or inaccurate ‘relevant personal information’ (for the purposes of s 11 of the Act)? The prosecutor submitted the answer to this question was ‘yes’, whereas the accused submitted the answer was ‘no’; and

  2. Is a registrable person lawfully able to report to police a change in their relevant personal information under s 11 of the Act before that change actually comes into effect or crystallises? The prosecutor submitted the answer to this question was ‘no’, whereas the accused submitted the answer was ‘yes’.

D.   DIRECTIONS

  1. As these are criminal prosecution proceedings, it is important to outline the directions of law which I have given myself in determining this matter.  Those directions are as follows. 

  2. The most important and fundamental principle of law which I apply concerns the onus and standard of proof.  As these are criminal prosecution proceedings, the burden of proving the guilt of the accused is placed firmly on the prosecutor.  The accused starts from the position that he is presumed innocent, and that presumption continues until the prosecution satisfies me beyond reasonable doubt that he is guilty.

  3. Subject to one qualification concerning the application of s 17(2) of the Act to the facts in this matter, the accused does not have to prove that he is innocent.  Expressed another way, the accused does not have to prove that he is not guilty, and it is for the prosecutor to prove his guilt if it can.  What the prosecutor must prove, beyond reasonable doubt, are the ingredients or essential facts contained in the charge.  The words ‘beyond reasonable doubt’ are ordinary, everyday words and that is how I understand them.

  4. I warn myself that suspicion, even strong suspicion, is not a substitute for proof beyond reasonable doubt.

  5. I note that as the tribunal of fact I am expected to use my individual qualities of reasoning, my experience, my understanding of people and human affairs and my common sense.  The court cannot convict if there is any rational hypothesis or reasonable possibility consistent with innocence.  If upon review of all the evidence the court is left with reasonable doubt whether the prosecution case has been made out, a verdict of acquittal must be entered.

  6. The fact that the accused has given evidence at the hearing does not alter the burden of proof, which always rests on the prosecutor, except in the case of reliance on s 17(2) of the Act.  He does not have to prove his versions of events is therefore true, apart from what he must prove if he relies on s 17(2) of the Act.  Even if all the accused’s evidence is rejected, I must still consider whether the prosecutor has proved the elements of the offence beyond reasonable doubt.

  7. I acknowledge that I have important matters to decide in this case - important not only to the parties but also to the whole community.  I must, as a jury, act impartially, dispassionately and fearlessly.  I must not let sympathy or emotion sway my judgment.  I must not act capriciously or irrationally.  I am obliged to determine all relevant issues of fact according to the evidence that has been presented during the course of the hearing.

  8. It is for me to assess the various witnesses and decide whether they are reliable.  I note that the reliability of any witness' evidence depends upon two quite different but sometimes overlapping considerations.  One is the witness' honesty and the other is the witness' accuracy.  The honesty of a witness involves considering not only what the witness said or perhaps did not say, but also the impression the witness made upon me.  I note that in relation to accepting the evidence of a witness I am not obliged to accept the whole of the evidence of any one witness, I may if I think fit accept part and reject part of that witness' evidence. 

  9. I remind myself that the fact that a proposition is put by counsel or a representative of a party to a witness, does not mean that the proposition is evidence of the fact contained in the question.  It only becomes evidence of the fact if the witness accepts the proposition is true, or if there is other evidence that proves the proposition.

E.   THE EVIDENCE

  1. I will now turn to the evidence.  I will summarise the evidence in the order it was generally adduced in court at the hearing.

  2. I start with Officer Peter King.  He was at the relevant time a Child Protection Register Officer, and as I understood the evidence, was now a Leading Senior Constable with the Newtown police.  He gave evidence that on 15 April 2020 he attended the accused's residence in Marrickville with other police officers.  This was the residence which the accused at that point shared with his parents.  The purpose of this attendance was to conduct an inspection under s 16C of the Act to verify the information the accused had provided to police in accordance with his reporting obligations via what was referred to in the evidence as a ‘Form 4’.  At this point, I note that the term ‘Form 4’ is not in those precise terms referred to in the Act, however, it is a statutory incarnation of the acknowledgement the police are required to record under s 12C of the Act.

  3. Body‑worn video footage of the officer’s attendance at the premises was tendered as Exhibit 1. 

  4. Exhibit 2 was also tendered, and this was the Form 4 referred to as ‘sequence 29’ dated 6 January 2020, which was also signed and acknowledged by the accused on p 5.

  5. Exhibit 3 was the record of the outcome of the s 16C inspection of 15 April 2020. 

  6. Exhibit 4 was, in part, body worn video footage of the attendance by police officers at the accused's new residential premises in [redacted] on 26 August 2020 for the purposes of a further s 16C inspection.  The accused refers to a recent report he made about the change in his personal information.  There is then a discussion about his internet use and its connection at about 11 minutes into the footage.  The accused confirms it is broadband for the entire building and may be Telstra or Optus, but will need to ask the landlord.  He then says he will confirm the details and provide them to police.  There is then a further discussion before the inspection ends.

  7. Exhibit 5 was the s 16C inspection report for the 26 August 2020 attendance by police. 

  8. Exhibit 6 was an email chain of correspondence between the accused and police officers following the 26 August 2020 inspection and the issue identified at that inspection in relation to the details of the internet service provider.  Body worn video footage of the arrest of the accused on 9 September 2020 was then played to the court.  This file comprised part of Exhibit 4.  The accused answers the door to the premises and is told that he was under arrest concerning an allegation he was in breach of his reporting obligations under the Act.  He is then cautioned.  He explains that he does not have his documents with him but then goes on to explain his position in relation to the allegation.

  9. He obtains his laptop and begins searching for a file which contains his notes about his reporting material.  He refers to a note he made about his original attendance with Officer Oliver and what he was told about reporting his internet service provider.  He explains that the internet service provider details have not been on his Form 4 since he first reported in June 2017.  He said he provided the information to Officer Oliver in relation to his Marrickville address and was not sure why it was not on his Form 4.  He said when he moved to [redacted] the issue of the internet service provider did not come up and he said this was a genuine oversight and he was quite taken aback by it.

  10. Exhibit 7 was then tendered.  It is a statement by a Ms Payson confirming that the internet service provider to the premises occupied by the accused at [redacted] between 2 June 2020 and 26 August 2020 was the company ‘iiNet’, through the NBN. 

  11. Exhibit 8 was then tendered, which I have already identified, being the s 21A certificate, and I have set out the details of this certificate later.

  12. Mr King was then cross‑examined.  In summary he was questioned about the investigation process involving the allegation against the accused.  Propositions were put to him about the fallibility of the police systems in recording information and data.  He confirmed that the system was not infallible.  He was asked about the workload of Child Protection Register officers and the demands on their time in relative proportion to their other duties.  He also acknowledged that the Form 4 used at the time of the alleged offence in this matter was a difficult form and officers had difficulties using it.  It was noted that there was no separate standalone place to insert internet service provider details apart from on p 2 under the heading "ISP related information".

  13. Exhibit 9 was tendered, which was the accused's Form 4 ‘sequence 3’ dated 25 July 2017.  Mr King acknowledged that there were no other breaches by the accused, in the time that he had been on the register, of his reporting obligations. 

  14. Exhibit 10 was tendered, which was the accused's Form 4 ‘sequence 14’ dated 3 July 2018. 

  15. Exhibit 11 was also tendered, which was the accused's Form 4 ‘sequence 20’ dated 1 February 2019, which for the first time referred on p 3 to ‘Telstra’ and the networking application known as ‘Twitch’. 

  16. Exhibit 12 was the Form 4 ‘sequence 32’ dated 2 June 2020. 

  17. Exhibit 13 was the Form 4 ‘sequence 34’ dated 7 July 2020, which for the first time had a separate heading on p 4 reading "Internet service provider".  The Form 4 entry records against this heading the following words: "no details provided".  Officer King also gave evidence that the accused was very studious and fastidious in relation to his reporting of personal information to police.

  1. He was asked questions about the COPS database which the evidence later revealed was an acronym for ‘Computerised Operational Policing System’, and in particular the 4 entries in that system as they pertained to the accused and his reporting obligations, which were tendered as Exhibit 14.  Officer King conceded that these entries contained the minimum information to get the essential point across about the subject matter of the entry.  In respect of the first page of the entries, this related to the accused’s attendance upon Officer King on 19 May 2020 in which the entry reveals discussions about the accused’s new residence and removal of an irrelevant landline phone number.  Officer King was also asked questions about the decision to arrest the accused.  Officer King was also re‑examined on some of the evidence he gave in cross‑examination.

  2. I then turn to the evidence of Officer Penny Drury, who gave evidence‑in‑chief in the form of a written statement which was tendered as Exhibit 15.  Her evidence focussed on the arrest of the accused on 9 September 2020 and the events of 8 September 2020 leading to the decision to arrest the accused based on the content of certain emails, which I will come to shortly in the context of other evidence.  In court she confirmed she worked in the Child Protection Register Unit at the New South Wales Police Force.  Ms Drury was briefly cross‑examined about her role in preparing the brief of evidence in the prosecution case.

  3. I next turn to the evidence of Officer Davidson.  He gave evidence that he was a Detective Senior Constable with the New South Wales Police Force and at the time of the alleged offending in this matter he was a Plain Clothes Senior Constable.  Officer Davidson managed the accused for the purposes of the accused’s obligations as a registrable person from about mid‑2019 to July 2020.  He said he received correspondence from the accused on 18 May 2020 about the accused wishing to make changes to his personal information.  This correspondence was tendered as Exhibit 16. 

  4. On 19 May 2020 Officer Davidson met with the accused, in person, at the Newtown Police Station in an interview room where they discussed changes to the accused's personal information.  Officer Davidson said he updated the accused personal information and updated his Form 4.

  5. Tendered as Exhibit 17 was an email exchange between Officer Davidson and the accused on 2 June 2020.  In the accused’s email of 2 June 2020 sent at 2.56pm, the accused confirms to Officer Davidson that he was moving his residential address that evening, and reiterated his request that his personal information be updated to reflect the new address and the deletion of a redundant landline telephone number.  The email also says: "I will send a separate email report when I have information about the new internet connection".  Officer Davidson said that as part of these updates to the accused’s personal information no other changes were made. 

  6. Tendered as Exhibit 18 was the accused's email to Officer Davidson sent on 30 June 2020 about further changes to his personal information including a ‘Slack’ account, which was a ‘chat app’ for work and university purposes, and new foreign passport information. 

  7. Tendered as Exhibit 19 was an email from the accused to Officer Davidson requesting the details of his new case officer, being Officer Greentree.

  8. Officer Davidson was then cross‑examined.  He confirmed his written statement in the proceedings was dated 16 June 2021 which was over a year after the events the subject of the accused's arrest.  He said in preparing his statement he relied on the COPS database entries concerning the accused’s previous reports and the notes contained therein.  He was asked a series of questions about the accused's Form 4 documents and the absence of a separate place to enter details of the relevant internet service provider.  Officer Davidson however said that any information given to him could be recorded on the Form 4 but accepted that information could also possibly be put in the wrong spot on the form. 

  9. Officer Davidson was also shown an email from the accused to the officer dated 6 May 2020 in which the accused notified him of the details of his ‘Zoom’ and ‘Slack’ accounts, which was an instant messaging‑based workstation for his university purposes during the Coronavirus lockdown.  This document was tendered as Exhibit 20.  Officer Davidson confirmed that this information was not contained in a subsequent Form 4 relating to the accused and this was due to human error.

  10. He was also asked about his meeting or interview with the accused on 19 May 2020.  He could not recall how long the meeting went for.  He said that at the meeting he had access to a computer and when he attempted to input the information concerning the accused’s proposed forthcoming new residential address and the deletion of the redundant landline phone number, the computer system itself would not allow this to occur because the information was being provided in advance of the change actually occurring.  Officer Davidson said he told the accused to come back in later because the system at that time was not allowing him to make the change.  Officer Davidson said he could not recall whether the accused told him at this meeting that the internet service provider at the [redacted] premises was Telstra.  He confirmed he did not show the accused the notes he made of the meeting on 19 May 2020.  He also could not recall precisely how long after the meeting he made the entries into the COPS system concerning the points of discussion at that meeting.

  11. I next turn to the evidence of Officer Greentree.  He gave evidence that he was the accused’s case officer in respect of his reporting obligations.  He said he attended a meeting with the accused and Officer King in July 2020 at which time the accused said he needed to update his personal information to reflect his use of ‘Slack’.  A new Form 4 was created to reflect this, being the document tendered as Exhibit 13.  Officer Greentree also confirmed he provided the accused with a Form 3, being the document tendered as Exhibit 21, which sets out the accused’s reporting obligations.  A further form was also completed, and this was tendered as Exhibit 22.  It is a form which records questions asked of the accused and his responses concerning his reporting obligations and was dated 7 July 2020.  A ‘quick guide for reporting changes to information’ was also provided to the accused and this was tendered as Exhibit 23.

  12. Officer Greentree gave evidence about the conversation he had with Officer King on 31 August 2020 about an identified potential breach by the accused of his reporting obligations under the Act.  Officer Greentree formed the view or the belief that it warranted further investigation.  He contacted the accused on 8 September 2020 and arranged to meet the accused at Newtown Police Station on 10 September 2020.  Officer Greentree however was not at work on 9 September 2020, and upon returning to work on 10 September 2020 became aware that the accused had been arrested and charged in relation to the alleged breach. 

  13. Officer Greentree was cross‑examined.  He confirmed the anticipated 10 September 2020 meeting did not take place.  Tendered as Exhibit 24 was an email exchange between the accused and Officer Greentree on 8 September 2020 in relation to their intended meeting.

  14. It was at this point that the prosecution case closed, and the accused conceded a prima facie case.  The accused then elected to give evidence.  I now turn to that evidence.  He gave evidence as follows.

  15. [redacted]

  16. He said he pleaded guilty in 2015 in relation to certain child sexual offences and served a two‑year intensive correction order for those matters.

  17. [redacted]. 

  18. He recalls that at the time he first acquired reporting obligations under the Act he was given a ‘Form 3’ setting out those obligations and he sought legal advice in respect of it.  He met with police and compiled his ‘Form 4’.

  19. He originally met with Detective Senior Constable Oliver on 25 July 2017.  He said he was aware he had to provide internet service provider details and other details concerning his computer use, and he spent some time making a compilation of his material which he took to the police station.  He also took his family's recent Telstra bill to police.  He gave Officer Oliver the document which was tendered as Exhibit 25 containing the various online information relevant to him.  At the bottom of the page is a reference to the internet and Telstra as a provider. 

  20. Tendered as Exhibit 26 was a copy of the accused’s Form 3 notice which had been provided to him by police.  He said he kept all his information and material in an orange‑coloured folder.  The Telstra bill that he had taken with him, which was addressed to his parents, was put in front of Officer Oliver as this was the most recent bill or invoice he had at the time from Telstra as the internet provider to his parents' premises where he was living at the time.

  21. He confirmed that Exhibit 9 was the first Form 4 compiled by police in relation to him.  The accused said Officer Oliver did not place all the information on the form that the accused had provided to him.  After checking the form, the officer fixed a couple of items and told the accused not to worry about some of the errors.  Officer Oliver told the accused there was no space to record the internet service provider details.  The accused was told it was sufficient compliance that he had provided the document comprised in Exhibit 25 which I referred to earlier. 

  22. The accused said he raised with police at the first annual report that a specific location for the internet service provider details was missing on the form.  He said he raised other errors with the police and was told to just trust the judgment of the officers.  He said he nonetheless signed the various forms with some hesitation, but this was based on assurances from police.  He said he was not in any habit of arguing with them.

  23. He gave evidence about the 19 May 2020 meeting with Officer Davidson.  He had just finished serving his intensive correction order where he was required by the terms of that order to live with his parents at Marrickville.  He said he wanted to move out and began inspecting premises for this purpose.  He found suitable premises in [redacted], and emailed Officer Davidson on 18 May 2020 to report the proposed change of address.  The accused said he was aware of his obligations in this respect under s 11F of the Act.  He said he found these premises on the website ‘flatmates.com.au’.  He said he spoke with Cheryl Pomering who had advertised the premises and organised an inspection.  He initially inspected the premises on 15 May 2020 whilst he was alone, and then again on 16 May 2020, this time with his mother.  He said both he and his mother were concerned about him moving to the premises having regard to his ongoing reporting obligations and he was concerned other residents may ascertain or become aware of his reportable status.

  24. The accused was also concerned about how he would retrieve the internet service provider information.  On 15 May 2020 he asked Ms Pomering about who the internet was with, and he needed a good internet connection as his law studies had moved online.  He said he was told by Ms Pomering that the premises were connected to the NBN with Telstra.  He then agreed to rent the premises and sent Ms Pomering a message to that effect.

  25. He was then asked to comment on Exhibits 16 and 17, being email correspondence he sent officers.  He said that on 19 May 2020 he attended Newtown Police Station for his appointment with Officer Davidson.  He had his bag with him together with his notes relating to his reporting obligations and the proposed changes to the Form 4.  He said the first part of the meeting involved a friendly conversation where Officer Davidson complained about certain staffing issues.

  26. The accused then told the officer he found a new residential premises online.  Officer Davidson asked him about the property and the accused told him it was an odd residence because it was an old RSL dance floor.  The accused said he was worried about police visits to the premises because of the odd nature of the premises.  The accused said that all the bills associated with the premises were shared with the other residents and he told Officer Davidson that the internet service provider was through the NBN with Telstra.  Officer Davidson asked him if he could provide the IP address and the account name. 

  27. The accused asked him to make the two changes concerning the residential address and the deletion of the redundant landline phone number.  Officer Davidson did not have a notebook with him, and as he was accessing the system he tried to make changes on the spot.  The officer then told the accused that the system would not let him make a change relating to a future circumstance.  The officer showed the accused the computer screen and that he would make the changes on 2 June 2020 when the accused took up actual occupation of the premises.  Officer Davidson asked the accused to remind him by email, but he said he should remember to make the changes anyway.  The accused told him the extra details about the internet may be hard to obtain but that he would try.

  28. The accused made notes in his log for the period July 2019 to June 2020.  This contains a summary of all reports made to police that year and was maintained for his own records.  The accused said he makes the entries at the time of his report or when he gets home that same day.  His attendance on 19 May 2020 at the meeting with Officer Davidson and the email correspondence on 2 June 2020 are recorded as entries 11 and 12 respectively on the accused's self‑administered logbook entries which was tendered as Exhibit 28. 

  29. The accused was then shown Exhibit 17, being the email correspondence between the accused and Officer Davidson on 2 June 2020 and explained that the reference to a "reminder" harkened back to the request made by Officer Davidson on 19 May 2020 that the accused remind him of the change of details to his residential address and the deletion of the redundant landline phone number.

  30. He also confirmed that the reference to the "new internet connection" related to the identified potential difficulties in obtaining information concerning the account number and IP address for the internet service provider, which he had flagged with Officer Davidson at the 19 May 2020 meeting.  The accused confirmed Officer Davidson had made the relevant changes to his residential address and the removal of the redundant landline phone number.  The accused said that by reference to Exhibit 13 where 3 new headings had appeared on p 4 of the Form 4, including for the first time a heading styled as "Internet service provider", that he had raised with Officer King that he was concerned about this.  He said Officer King had told him sometime in late June 2020 that the system had been updated to include the 3 new headings and that the existing information in the Form 4 would be migrated into the new headings.  The accused confirmed that the product of the migrated data is reflected in the document tendered as Exhibit 29.

  31. The accused said he never tried to hide from police the fact that he was using the internet, and in fact had used the internet in the presence of officers when they had attended at his residential premises.  He was asked why he made the remarks he did at the 26 August 2020 visit for the s 16C inspection, and he explained that his orange folder containing all his relevant information was not with him but was kept at his parents' home in Marrickville.  He said that at the previous s 16C inspections he felt he was required to prove what he was saying was correct and this time he had no access ‘on the spot’ to the documentary records he had maintained.  He said the police visit was stressful because it conjured up his memory of the events of years earlier when police executed a search warrant in respect of him.

  32. He said he did not have a copy of his latest Form 4 with him and did not realise officers were making any allegations of a breach of his reporting obligations and therefore did not detail his conversation with Officer Davidson on 19 May 2020 but had only made an implicit reference to it.  The accused also said he had legal advice he did not have to provide specific details of the IP address in order to satisfy his reporting obligations under the Act.  The accused said he then emailed the landlord, Ms Pomering, and was told that the internet service provider was ‘iiNet’ and he provided this information to police.  The accused was also cross‑examined, and I will discuss his evidence in cross‑examination shortly.

  33. Also tendered in evidence in the accused’s case was Exhibit 30.  I have read the statement of Cheryl Pomering dated 22 July 2021.  She gave evidence that she was the manager of the premises at [redacted].  On or around 13 May 2020 she advertised a room online via ‘flatmates.com.au’ for rent, being the premises at [redacted].  She recalled that on 15 May 2020 the accused came to inspect the room by himself.  On a different day the accused came back with his mother to inspect the room again.  She does not recall at which of those meetings the internet connection was discussed, however, she recalled telling the accused that she had installed very fast internet via the NBN through Telstra.  She also recalled that she had to put in an extra line so that the service could be installed. 

  34. On 28 May 2020 the accused sent her a text message requesting the Wi‑Fi password which she provided him.  On 26 August 2020 the accused emailed her in relation to the internet cutting in and out and she responded on the same day.  She replied that the internet connection was via iiNet and that she was forced to go onto the NBN because the internet was dropping in and out for her as well.  Ms Pomering was not required for cross‑examination, so at this juncture therefore I confirm I accept her evidence.

F.   FINDINGS

  1. Now that I have summarised the evidence in both the prosecution case and the accused's case, I turn to my findings.  In this respect I have had regard to the parties' respective submissions, which I have considered carefully.  I will first deal with the legal points that were relevant in the determination of this matter.  Following this, I will turn to my factual findings and the consequences of those findings based on my determination of the legal issues.

(a)   Legal issues

  1. There was no dispute in this case that a registrable person can fulfil their reporting obligations under the Act by providing a verbal report to police, as s 12A of the Act makes clear.  The reporting process generally is that the registrable person provides the relevant personal information to police, this is then recorded in the ‘Form 4’ document for the purposes of s 12C of the Act, and the person makes an acknowledgement of that recorded information.  Of course, and I accept, that although such an acknowledgement may be made, the content of the written material is not necessarily a full and complete record of the information a person may have communicated to police, as the evidence in this case highlights.

  2. Dealing now with the contentious legal points, I find that there is no inherent requirement in s 17 of the Act that the personal information reported to police be accurate or correct.  This finding is important because there was no dispute in this case that whilst in occupation of the [redacted] premises, during the period specified in the charge, the accused’s internet service provider was in fact ‘iiNet’.  The provider was not Telstra, yet the accused’s evidence was that he had informed police that the provider was Telstra.  This information was therefore not accurate.

  1. On a proper construction of s 17 of the Act when read in the context of the Act as a whole, s 17 only mandates that the registrable person notify the personal information set out in s 9 or any change to that information as required by ss 10 and 11 respectively, and it does not govern the correctness of that information.

  2. In this respect, I am mindful of the principles in the following authorities. First, Mondelez Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Minister for Jobs and Industrial Relations v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2020) 271 CLR 495; [2020] HCA 29 at [98]. I also note the decisions of the High Court in R v A2; R v Magennis; R v Vaziri (2019) 269 CLR 507; [2019] HCA 35 at [32] to [37], The Australian Securities and Investments Commission v King [2020] 270 CLR 1; [2020] HCA 4 at [23], and finally the decision in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41at [46] and [47].

  3. In summary the court should consider the text, context and purpose of the relevant legislation bearing in mind the mischief to which the statute is directed.  The court starts with the ordinary meaning of the statutory text, read in context.  A construction that promotes the purpose of the provision must be preferred.  In this case, although it is a principle of last resort, if ambiguity does remain, provisions that create criminal liability are to be construed narrowly against the state, that is, in favour of the accused:  see Aubrey v The Queen (2017) 260 CLR 305; [2017] HCA 18 at [325] to [326]. The obligations imposed by the Act have been described by the Supreme Court of New South Wales as onerous, placing enormous restrictions on the liberty and privacy of the registrable person. See, for example, the decision in O'Neill v Commissioner of Police [2020] NSWSC 1805 at [9].

  4. In the present case, Parliament has prescribed the consequences of a registrable person providing incorrect personal information in s 18 of the Act, which is distinct, to my mind, from the purpose of s 17.  Where wrong information is provided to police in purported compliance with reporting obligations under the Act, if the registrable person knows the information to be false or misleading in a material particular, an offence is committed only in that circumstance under s 18 of the Act.  So not only does the information have to be false or misleading to engage s 18 of the Act, but it also must be ‘materially’ false or misleading.  In other words, even if a person knowingly provides wrong information in purported compliance with their reporting obligations, this does not necessarily mean that an offence has been committed under s 18 of the Act.  There is a materiality threshold.

  5. Say, for example, for the purposes of s 9(1)(d) and s 11 of the Act, that a registrable person notified a change to the residential address but innocently misstated the postcode so that the address provided was therefore not correct.  Or say the full name on their birth certificate was a particular name but they neglected to state their middle name during the annual report.  Or say the registrable person for the purposes of s 9(1)(h) of the Act nominated a vehicle type wrongly as a sedan as opposed to a hatchback.  These would not be, in my view, breaches of the terms of s 17 of the Act if they involved an innocent misstatement or were communicated in good faith.  Relevant personal information as defined by the Act would in these circumstances still have been supplied to police, albeit the information was wrong.  Parliament has expressly turned its attention to the circumstance of a registrable person providing incorrect personal information as reflected in the terms of s 18 of the Act.

  6. Section 17 of the Act is therefore concerned not with the veracity or correctness of the information, but rather with the act of providing or communicating the relevant personal information to police.  Expressed another way, I find s 17 of the Act is not concerned, therefore, with the content of the information, but rather its non‑provision.  That is, if a person were to refuse, fail or neglect to provide the information mandated by s 9 of the Act, this constitutes an offence under s 17 of the Act.  To my mind it is no answer to say that if any of the examples I have given were to occur, that prosecutorial discretion might be exercised to decline bringing a prosecution.  Either the behaviour is criminal, or it is not, and on a proper construction of the provision, for the reasons I have given, and at the risk of repetition, I find s 17 of the Act is concerned with the non‑provision of information as opposed to its correctness.

  7. In the present case, assume the prosecutor had brought a charge under s 18 of the Act.  I am certain that, on any view of the evidence, such a charge would never have succeeded because there was no basis to conclude that the accused knew the information about the internet service provider, which he provided to police, was wrong.  It is doubtful if Parliament had intended that a person in the accused’s position had nonetheless committed an offence under s 17 of the Act that the same maximum penalty as provided for in s 18 would have been prescribed, being 5 years' imprisonment and/or a fine of up $55,000.  It is, however, to my mind logical that Parliament would have prescribed the same maximum penalty for, in the case of s 18 of the Act, knowingly providing materially false information, and in the case of s 17 not providing the necessary information, given that these two forms of behaviour are, expressed at a high level of generality, comparable in their criminality. 

  8. In summary, I find ss 17 and 18 of the Act are directed at distinctly different criminal behaviour in the way I have described.

  9. Further, I do not consider that s 11 of the Act imposes any temporal restriction on when relevant personal information may be reported to police, except that it only mandates the time by which that information must be provided.  That is, I find it only imposes a deadline.  I see no reason to read down s 11 of the Act so that a person may only report a change in relevant personal information once the relevant change has itself crystallised or that relevant event occurs.  If a registrable person anticipates or foreshadows a change in their personal information, I see no reason why the particulars of that change could not be communicated by the registrable person to police as soon as they are known, even if the change had not actually occurred on or by the date the information is provided.

  10. To the contrary, it seems to me that the early provision of reportable information ought to be encouraged.  Section 2A of the Act provides as one of its objects, "to monitor persons who are registrable persons".  The early provision of information will in fact provide more time for relevant authorities to assess the information and therefore to act upon it if it were determined that the registrable person posed a risk to the lives or sexual safety of one or more children or of children generally being the central aim of the legislation.  I accept that providing information before the relevant change crystallises may, in a particular case, result in police receiving misleading information.  Because, for example, the information may conflict with the existing personal information recorded by police in respect of a person, or the change does not eventuate for whatever reason.

  11. But, again, s 18 of the Act governs this circumstance.  Therefore, provided a registrable person is clear in the information they provide to police about the change in information, including when the relevant change will occur, and that change comes into effect, I see no reason why a person is constrained by the Act as to the time from which they are permitted to communicate the information to police, as opposed to the time by which that information must be provided.  There is no warrant, in all the circumstances, for reading words of limitation into s 11 of the Act in relation to the ability to make a report about a change of relevant information before the change crystallises.

  12. That this interpretation should be preferred is underscored by the occasional use of the words "or intended to be used” in s 9(1) of the Act and most notably, for the purposes of these proceedings, in s 9(1)(n).  These words indicate that a change of personal information may occur in the future.  In this way, the legislation recognises the ability of a registrable person to disclose a future intention and thus a foreshadowed change to their personal information.  The contrary interpretation sets up a cumbersome process whereby the intended change could be communicated, but once the change materialises, a further report needs to be made that the change has actually carried into effect.  I see no logical reason for such a reading of s 11 of the Act.

  13. Further, I do not consider that the effect of s 11F of the Act alters the position.  Section 11F of the Act provides that at least 14 days before changing the person's place of residence the person must report the change to police.  This is merely an example of an obligation in the legislation that requires prior notice of the future change.  It does not mean that where a registrable person has a deadline to notify a change of personal information, as mandated by some other statutory provision, advance notice of that change is impermissible.  Section 11F of the Act therefore works harmoniously with the other provisions of the Act and does not in any way control or influence the proper interpretation and effect of s 11 of the Act. 

(b)   Factual issues

  1. As a result of my determination of the legal issues, if I find that the accused reported to police at the meeting/interview on 19 May 2020 that Telstra was the internet service provider servicing the [redacted] address, he was not in breach of his reporting obligations and therefore did not commit any offence against s 17 of the Act, despite the fact the information was incorrect, and despite the fact he did not take up physical occupation at the [redacted] premises until 2 June 2020 (which was the date from which he had actual use of the internet servicing those premises via iiNet).

  2. In this respect, the case principally turns on a consideration of the evidence of Detective Senior Constable Davidson, and the evidence of the accused.  It is to be recalled that these are of course criminal proceedings.  Unless he seeks to rely upon a reasonable excuse under s 17(2) of the Act, the accused bears no onus whatsoever.  The onus remains firmly on the prosecutor to prove each of the elements of the offence beyond reasonable doubt.  The accused, having elected to give evidence in court, has given up his right to silence and has subjected himself to cross‑examination on his evidence, but the onus never shifts to him, apart from any reliance on a s 17(2) excuse/defence. 

  3. Accordingly, if the accused’s evidence about what he told Officer Davidson on 19 May 2020 at least might be true in relation to Telstra being the internet service provider at the new premises, the court would necessarily have reasonable doubt at the end of its deliberations.  In other words, it would not be appropriate to assess the evidence as a contest between the evidence of Officer Davidson and the accused such that a preference for one person's evidence should be expressed to resolve the conflicting versions.  Rather, the Court should consider all the evidence, including the accused's evidence, to determine whether ultimately, at the end of my deliberations, there is any reasonable doubt as to the accused’s guilt.

  4. Although I am by no means completely certain about the veracity of the accused’s evidence regarding his discussions with Officer Davidson, I find that the accused at the very least might be telling the truth that on 19 May 2020 he told the officer that the internet service provider at the [redacted] address was Telstra.  I therefore find that his evidence was at least reasonably plausible and might be true.  I make this finding for the following series of reasons.

  5. First, Ms Pomering's unchallenged evidence, which I have accepted, was that on 15 May 2020, or on a subsequent and different day, she told the accused the premises were connected to very fast internet via the NBN through Telstra.  Accordingly, the accused’s version that he told police on 19 May 2020 that the internet service provider at the [redacted] premises was Telstra was consistent with the sufficiently contemporaneous information he was provided by the landlord of his new residential premises. 

  6. I also do not consider there is any basis, including by the drawing of inferences from the evidence, including the Exhibit 6 email correspondence, that in fact the accused was aware from the start of his lease that the [redacted] premises were serviced by iiNet.  As Ms Pomering's unchallenged evidence shows in her statement tendered as Exhibit 30 at paragraph 8, the first time she notified the accused about iiNet was on 26 August 2020.

  7. Secondly, it was abundantly clear that the accused was using and had ongoing access to the internet at those premises.  The accused was not trying to hide this fact and there are examples of instances where he sought to update his personal information with police which brought attention to, or highlighted, the fact he had ongoing internet access. That he might therefore have told Officer Davidson about the internet service provider he thought was servicing the [redacted] premises is therefore plausible.

  8. Thirdly, on the one hand, Officer Davidson said he did not recall a conversation on 19 May 2020 in which the accused mentioned Telstra as the internet service provider at the new premises, whereas the accused said he specifically recalled the conversation about this precise matter.  Despite cross‑examination, the accused adhered to his evidence‑in‑chief and that evidence was not undermined.  He remained consistent in his account and recollection of his interaction with Officer Davidson and he was unshaken by cross‑examination, was forthright in his responses and there was no basis to conclude that he was being in any way evasive in his evidence.

  9. Fourthly, I accept that there is some application of s 165(1)(f) of the Evidence Act 1995 (NSW) in respect of the evidence Officer Davidson, it being evidence of questioning by an investigating official of a defendant that is questioning recorded in writing that has not been signed or otherwise acknowledged in writing by the accused. The COPS entries tendered as Exhibit 14, and notably the entry for the 19 May 2020 meeting, was not signed or acknowledged by the accused. I do not say this at all critically of Officer Davidson, but it is to be compared with the accused who specifically recalled the conversation on 19 May 2020 in which Telstra was notified as the internet service provider and he was cross‑examined on his recollection. His evidence ultimately withstood cross‑examination.

  10. Officer Davidson also conceded that the COPS entries are not necessarily a complete record of all topics discussed during the relevant meeting or interview, and therefore this does not discount the possibility other topics not expressly mentioned in the entries were in fact discussed.  I also note the evidence about the delay or time lapse between the meeting that Officer Davidson had with the accused on 19 May 2020 and the time when the COPS entry was made, and, incidentally, the delay between the meeting and his written statement prepared for the proceedings.  This also plausibly explains why details of the discussion concerning the internet service provider on 19 May 2020 may have been missing.

  11. Fifthly, as Exhibit 17 makes clear, the accused in his 2 June 2020 email sent at 2.56pm to Officer Davidson alludes to information concerning his new internet connection.  This is consistent with his evidence that an earlier conversation referring to his internet service provider had occurred.  The accused was clearly keen to ensure police had details of the internet connection.  I consider it to be inconsequential that the further internet service provider details were not ultimately provided because, as the accused said, getting details such as the IP address or account name might be difficult, and he also had legal advice that this specific information did not have to be provided, being advice which, when regard is had to the terms of s 9(1)(n) of the Act, was, in my view, correct.  It was only the internet service provider's name which must be provided according to that provision.

  12. It is therefore understandable why this issue, and the further details concerning the internet service provider, may have left the accused's mind at this time, and in any event, on his evidence and consistent with the content of the email in Exhibit 17, he was only reminding Officer Davidson about the changes to his personal details at the time of the 19 May 2020 meeting at that officer's request.  It was not the case therefore that the accused believed he had an obligation to provide the further information and to take further proactive steps to confirm the information he gave the officer.

  13. Sixthly, Officer Davidson conceded that the accused had at one stage updated his personal information with police and these were not properly reflected in the Form 4.  Here, I am referring to the evidence concerning Exhibit 20.  This is therefore an example where information was provided by the accused, but the official documentary record does not reflect the updated information.  It is therefore again plausible that this may have also occurred in relation to the internet service provider details.

  14. Lastly, my overall impression of the evidence was that the accused was conscientious about his reporting obligations and, for example, Officer King conceded as much in cross‑examination, and it appeared to me unlikely that the accused would have neglected to mention to police prior to taking up residence at [redacted] any information on the topic of the internet service provider servicing those premises. 

  15. For completeness, there were, as I alluded to earlier, reasons why one might doubt the believability of the accused’s evidence about the content of the conversation on 19 May 2020 and whether in fact he did advise Officer Davidson about Telstra as the internet service provider.  His interactions with police, as can be seen in the body worn video footage tendered as Exhibit 4, included discussions between the accused and officers about the internet service provider at the [redacted] premises.  The accused can be heard to say that he did not know if the premises were serviced by Telstra or Optus, and later says that the absence of this information in his reports was a genuine oversight.

  16. Ultimately, I find that these observations, which may have the potential to cast some doubt on the believability of the accused’s evidence, are not sufficient for me to ultimately conclude that the evidence was untrue and should be rejected.  The accused in court gave what I considered to be a plausible explanation for the comments he made in the body worn video footage and those comments are not necessarily inconsistent with the fact that he had a conversation on 19 May 2020 with Officer Davidson to the effect he described in his evidence.  As he said, he was ‘put on the spot’.  He did not have access to his documentary material and information which he kept at his parents' house in Marrickville and was stressed by the circumstances he found himself in.  The accused also conceded in cross‑examination that the comments he made to police as seen in the body worn video footage appeared to be equivocal.  This gave me comfort that he was not trying to shy away from what he said and was likely telling the truth in court.  I also note that the prosecutor ultimately accepted in closing submissions that a finding that the accused may have mentioned to Officer Davidson at the meeting on 19 May 2020 that Telstra was the internet provider for the [redacted] premises was reasonably open to the court.

  1. Exhibit 8, which is the certificate under s 21A(1) of the Act, provides that pursuant to s 21A(1)(b) of the Act, the Child Protection Register indicated that for the period between 2 June 2020 and 9 June 2020, the accused failed to notify information as required by s 11(1)(b) of the Act in that he failed to report a change in his relevant personal information, namely his broadband internet access.  Section 21A(1) of the Act provides that the matters certified in the certificate constitutes evidence of those matters unless evidence to the contrary is adduced.  I am satisfied, for the reasons I have described, that the evidence in the certificate has been rebutted, and in particular, that by communicating to Officer Davidson on 19 May 2020 that the [redacted] premises were serviced by Telstra as the internet service provider, there was no breach of his reporting obligations under s 11 of the Act, and therefore no offence against s 17 of the Act. It follows, therefore, that the charge must be dismissed.

(c)   Reasonable excuse

  1. If I am wrong in my interpretation of ss 11 and 17 of the Act, such that there is an inherent requirement that the personal information or change be correct, and that a change to that information may only be communicated to police once the relevant change crystallises, I find on the balance of probabilities that the accused had a ‘reasonable excuse’ for the purposes of s 17(2)(d) of the Act for failing to comply with his reporting obligations. 

  2. As the District Court observed in Filip Black v Regina [2017] NSWDC 326 at [20]:

"The reasonable excuse defence involves an evaluative judgment.  The term 'reasonable excuse' has been used in many statutes.  What is a reasonable excuse depends upon the circumstances of the case and the purpose of the provision to which the defence of reasonable excuse is an exception:  Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454 at 464 per Brennan CJ, Toohey, McHugh and Gummow JJ. A reasonable excuse is no more or less than an excuse that would be accepted by a reasonable person: Taikato at 470."

  1. See also the discussion in Z v New South Wales Crime Commission (No 2) [2005] NSWSC 1388.

  2. It seems to me that, provided there is some rational or logical connection between the articulated excuse and the objects of the Act, that the broad scope of s 17(2)(d) of the Act can potentially be relied upon.  I do not consider that on its proper construction the scope of s 17(2)(d) of the Act is in any way constrained by the matters referenced in s 17(2)(a)-(c).  I note that s 17(2)(b1) of the Act is an expressly recognised and specific reasonable excuse arising from the personal information gathering or collection process.  The factual circumstances grounding the reasonable excuse in the present matter are in a similar vein, that is, they relate to the process by which the relevant information was gathered or collected.

  3. I earlier set out the various reasons why I found the accused might have been telling the truth in the version he gave in court of the conversation between himself and Officer Davidson on 19 May 2020.  For those same reasons which I have earlier outlined at pars [99] – [110], I also find on the balance of probabilities that the conversation between the accused and Officer Davidson occurred in the terms described by the accused.

  4. That being so, I find as follows.  First, that it was reasonable in the circumstances to rely upon the information communicated to him by Ms Pomering about the identity of the internet service provider.  The accused was not the owner of the internet account.  The internet service was provided to other tenants including the accused and invoicing and billing was sent to the owner and the costs were shared among the tenants at the premises.

  5. As the words ‘reasonable excuse’ themselves suggest, the Act does not demand or expect perfection of a person.  The accused theoretically could have asked Ms Pomering to provide him with some documentary evidence confirming that Telstra was the internet service provider, but the apparent specificity of the information provided by Ms Pomering to the accused, namely that the service was very fast internet via the NBN through Telstra, I accept ought to have provided him with sufficient and reasonable comfort about the identity of the internet service provider.  On the evidence, the accused also had no reason to doubt Ms Pomering was telling him the truth about who the internet service provider to the premises was.  Again, I note the evidence of Ms Pomering was unchallenged and therefore I accept it.

  6. Secondly and relatedly, there was no occurrence or event during the period between 15 May 2020 when Ms Pomering told him that Telstra was the internet service provider, and 26 August 2020 when he was ultimately advised about the correct identity of the internet service provider, which would have alerted him to the fact that the original information about the internet service provider provided by Ms Pomering was incorrect or at least doubtful.  In other words, during that entire period between 15 May 2020 and 26 August 2020, I find on the evidence that the accused had no reason or need to interrogate Ms Pomering's original information concerning the identity of the internet service provider servicing the [redacted] premises.

  7. Thirdly, the accused had earlier advised police about the internet service provider on 19 May 2020 and had previously been told he did not have to provide specific information, including the IP address, and it was only the identity of the internet service provider which had to be notified.  The accused was asked by Officer Davidson to remind him about the changed information and no onus was placed on the accused to take further steps, and he was also acting on the legal advice he had obtained that specific information, including the IP address, was not required to be notified under s 9(1)(n) of the Act.  Accordingly, it was reasonable for the accused, in all the circumstances, to have believed he did not have to follow up on this and reconfirm the information with police later once the lease had formally commenced.

  8. The accused on his evidence, which I have summarised earlier, and which I have accepted on the balance of probabilities, was given previous assurances by police that he did not have to be concerned about the information relating to the internet service provider.  The accused was, I consider, reasonably entitled to rely on those assurances and, on his evidence, given what Ms Pomering had told him on 15 April 2020 that the internet service provider was Telstra, and as the accused internet service provider at the Marrickville premises was also Telstra, there was no change in the information.  The accused had been told that the information he had originally provided to police as part of his Form 4 obligations was sufficient in relation to the identity of the internet service provider.

  9. Accordingly, for each of these individual reasons, but also by a combination of those reasons, I find the accused had a reasonable excuse for failing to comply with his reporting obligations for the purposes of s 17(2)(d) of the Act, on the assumption I am wrong about the interpretation of ss 11 and 17 of the Act. 

  10. Given these findings, it is unnecessary to determine whether an alternative defence/excuse of honest and reasonable mistake of fact is available.  This defence/excuse is available in respect of strict liability offences and involves an accused satisfying an evidential burden which, if met, requires the prosecutor to negative the defence/excuse beyond reasonable doubt.  Reference to the defence/excuse of honest and reasonable mistake of fact was made during the hearing, but as I have said, I do not need to consider it.

G.   ORDERS

  1. Accordingly, it follows for all these reasons that I enter a verdict of ‘not guilty’ and the charge is dismissed.

H.   EPILOGUE

  1. At the time I gave my reasons for judgment, the accused’s solicitor raised a concern about the prospect this decision may be published, and therefore sought a non-publication order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010. In particular, the accused applied for a pseudonym order, restricting the publication of his name, and an order redacting information tending to reveal his identity.

  2. The accused filed comprehensive written submissions dated 22 November 2022 in respect of this application. The prosecutor informed the court that there was no opposition to the application.

  3. Section 6 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) provides that in deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

  4. For the reasons set out in the accused’s written submissions dated 22 November 2022, I am satisfied, relying on s 8(1)(e) of the Court Suppression and Non-Publication Orders Act 2010, that an order should be made that the name of the accused is not to be published, nor is any other material that could lead to the identification of the accused, being the content of paragraphs [2], [14], [16], [33], [37], [54], [59], [61], [67], [77], [81], [95], [98]-[101], [108]-[111] and [119] of this judgment. I so order.

Magistrate Scott Nash

Downing Centre Local Court

23 September 2022

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Decision last updated: 17 April 2023

Cases Citing This Decision

0

Cases Cited

11

Statutory Material Cited

3

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Aubrey v The Queen [2017] HCA 18