PQR v Director of Public Prosecutions (NSW)

[2020] NSWSC 731

Supreme Court

New South Wales

Medium Neutral Citation:	PQR v Director of Public Prosecutions (NSW) [2020] NSWSC 731
Hearing dates:	4 June 2020
Decision date:	12 June 2020
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1)   Dismiss the amended summons.  (2)   Order the plaintiff to pay the first defendant’s costs of the proceedings.
Catchwords:	CRIME — Appeal and review — Appeal from Children’s Court to Supreme Court — By person against whom an interlocutory order is made with leave on a question of law alone — where plaintiff charged with offences alleged to have been committed against three complainants — ruling that evidence of each complainant be cross-admissible as tendency evidence — order refusing separate hearings — whether Magistrate gave adequate reasons EVIDENCE — Tendency evidence — Criminal proceedings — whether Magistrate failed to consider Evidence Act 1995 (NSW) s 101(2)
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW), ss 3, 53, 54 Criminal Appeal Act 1912 (NSW), s 5F Evidence Act 1995 (NSW), ss 97, 101, 110 Supreme Court Act 1970 (NSW), s 69
Cases Cited:	Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 D v Director of Public Prosecutions (NSW) - Sydney [2013] NSWSC 60 DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 DSJ v R; NS v R [2014] NSWCCA 77 Elias v DPP [2012] NSWCA 302; (2012) 222 A Crim R 286 Health Care Complaints Commission v Beck [1999] NSWCA 236 Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 JP v Director of Public Prosecutions (NSW) [2015] NSWSC 1669; (2015) 256 A Crim R 447 McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92; (2015) 250 A Crim R 154 R v Bikic [2000] NSWCCA 106; (2000) 112 A Crim R 300 R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56 Russell v Scott [2017] NSWSC 1720 Sasterawan v Morris [2008] NSWCA 70 The Queen v Iorlano; Re Mullally; Ex parte Attorney-General (Cth) (1983) 151 CLR 678; [1983] HCA 43 TR v Constable Cox [2020] NSWSC 389 Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88
Category:	Principal judgment
Parties:	PQR (Plaintiff) Director of Public Prosecutions (NSW) (First Defendant) Children’s Court of New South Wales (Second Defendant)
Representation:	Counsel: A Bellanto QC / T Bicanic (Plaintiff) D Kell SC / E Jones (First Defendant) Submitting appearance (Second Defendant)   Solicitors: Keypoint Law (Plaintiff) Director of Public Prosecutions (NSW) (First Defendant) Crown Solicitor’s Office (Second Defendant)
File Number(s):	2020/65643
Publication restriction:	Non-publication of any information or material that may lead to the identification of the plaintiff (Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7)
Decision under appeal	Court or tribunal: Children’s Court Jurisdiction: Criminal Date of Decision: 13 February 2020 Before: Magistrate Haskett File Number(s): 2018/393588; 2019/118693

Judgment

Introduction

1. By amended summons filed on 28 April 2020, the plaintiff, PQR (the applicant), seeks leave to appeal under s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) (the Act) against an order made by Children’s Magistrate Haskett on 13 February 2020 in the Children’s Court at Surry Hills refusing his application that the three sets of charges against him be heard separately. In the alternative, the applicant invokes this Court’s jurisdiction under s 69 of the Supreme Court Act 1970 (NSW) and seeks relief in the nature of prerogative relief.

2. It was common ground that the order refusing the application was an interlocutory order within the meaning of s 53(3)(b) of the Act: DSJ v R; NS v R [2014] NSWCCA 77 at [4] (Gleeson JA, Hidden J agreeing). It was also accepted that the magistrate’s ruling that the evidence of each of the three complainants was admissible as tendency evidence on the charges concerning the other two complainants was not an interlocutory order. However, it was common ground this ruling would need to be examined for the purposes of this application since it underpinned the order which was made. It was also common ground that the proceedings had been brought within time as the summons was filed on 28 February 2020.

3. The applicant sought leave to appeal on the following grounds:

1. Failure to give reasons;

2. Failure to consider s 101(2) of the Evidence Act 1995 (NSW);

3. Determining that the matter ought proceed by way of joint hearing.

4. Mr Bellanto QC, who appeared with Mr Bicanic on behalf of the applicant in the Court below and in this Court, accepted that ground 3 depended on either of grounds 1 or 2 being made out and had no separate operation.

The factual and procedural background

5. Dr Kell SC who appeared on behalf of the first defendant, the Director of Public Prosecutions (the DPP), has helpfully summarised the circumstances of the alleged offences with detailed footnote references to the evidence in the court book. The procedural background was also set out with footnote references to the transcript and other documents. The following narrative is largely taken from this summary.

6. The applicant was 16 or 17 years of age at the time of the alleged offences.

Charges laid on 21 December 2018 concerning Complainant A

7. On 21 December 2018, the applicant was charged with inciting Complainant A to commit an act of indecency when she was 13 or 14 years old. Complainant A, who played water polo, knew the applicant as a water polo referee. She saw the applicant about once a month. In December 2017, the two begun speaking via Snapchat. Complainant A said that the conversation quickly escalated to be about “sexual things” and that she “felt kind of, like, pressured to … play along with it” and “just, like, agree with him”. It was alleged that, around the time of her 14th birthday, the applicant asked Complainant A to send him a photograph of her naked breasts, which she did. When she had done so, Complainant A said she felt “[r]egretful” and “pressured because, like, he would, I felt like he would … hold it against me”. According to Complainant A, on the same day as she had sent the photo, the applicant sent her a photograph of his penis but she could not recall which photograph was sent first. She said that she had not said anything about the pictures previously because she thought she would get in trouble; she “liked him”; and she “thought it was, like, normal until like [she] realised it wasn’t”. When asked how she felt about the applicant, Complainant A said she felt “awkward” because of “what happened” and “intimidated” because the applicant is a “person of, like, authority in water polo”.

Charges laid on 16 April 2019 concerning Complainant B

8. On 16 April 2019, the applicant was charged with four offences of indecent assault in respect of Complainant B, who was 14 or 15 years old at the relevant time. The applicant and Complainant B both played water polo. Each of the offences involving Complainant B was alleged to have been committed during games of water polo in 2016.

Alleged offence on or about 20 July 2016

9. It was alleged that, on or about 20 July 2016, the applicant ran his finger inside Complainant B’s swimmers with one hand and grabbed her breast with his other hand. This conduct was said to have lasted for about 5-10 seconds until she was able to swim away.

Alleged offence on or about 3 August 2016

10. Complainant B further alleged that, on or about 3 August 2016, the applicant came up behind her and moved his hands onto her breasts, squeezing her breasts for about 3-4 seconds.

Further alleged offence in August of September 2016

11. It was also alleged that, on a different occasion in August or September 2016, the applicant grabbed Complainant B’s swimmers and pulled her towards his hips; placed his hand inside her swimmers; and moved his hand to squeeze her buttocks. This conduct was said to have lasted for about 3-4 seconds.

12. In a statement to police on 26 March 2019, Complainant B said:

“I was new to [the school] at the time these incidents were taking place. I left my previous school due to bullying. My confidence was low, I didn’t have many close friends at the school and I believed [the applicant] was in a superior position. Water polo was my outlet and I did not want to ruin it. [The applicant] was friends with the coaches, the senior girls and boys and for me to come out and say something would have left me ostracised and out of the circle at a very early time in my education at [the school].”

13. Complainant B was also able to corroborate details relating to the evening of 6 May 2017, which gave rise to the alleged offences against Complainant C.

Charges laid on 16 April 2019 concerning Complainant C

14. On 16 April 2019 the applicant was charged with three offences of indecent assault of Complainant C who was 15 years old at the relevant time. In a statement to police on 25 February 2019, Complainant C gave the following description of how she knew the applicant:

“[The applicant] was another student at my school. He was two grades above me. I can’t remember the exact date or time I first met him. Sometime around Term 2 of 2016, maybe around April 2016, I saw him at Water Polo. I’ve never actually played Water Polo but friends of mine were playing and I would go along to support them. In 2016, I was interested in a guy called [MD]. [MD] was in Year 10 at the time and he was playing for the [school] team. The team usually trained at the … pools on Wednesday evenings. The team would meet up on Level 6 of our school and do homework and stuff together before leaving for training. I went to these gatherings a couple of times, I don’t remember exactly how many.

I started going to Water Polo with [M]. [M] is one of my friends and she played in one of the school Water Polo teams. Most of the time, I would wait around at school with [M] until about 5pm and then I would go home before the teams left to go to the pools. …

About 11th June 2016, I started a relationship with [MD]. Once I started dating [MD], there wasn’t as much contact between [the applicant] and I. I dated [MD] for around 9 to 10 months. During my relationship, I was attending Water Polo games on Friday nights. [MD] and [the applicant] were in the same team at the time.”

15. One evening in early May 2017, the applicant drove Complainants B and C and another friend to various locations to celebrate Complainant B’s birthday. Alcohol was consumed. During the course of the night, Complainant C and the applicant were alone in the car in a car park near Bondi Beach. Complainant C alleged that, while she was sitting in the parked car with the applicant, the following events occurred. The applicant took her phone and placed it in the driver’s-side door of the car. He then placed his hand on her thigh and tried to kiss her. She leant over him to try to retrieve her phone and the applicant moved his hand under her shirt and touched her breast over the top of her bra. The applicant undid his pants and exposed his penis. He took Complainant C’s hand and placed it on his penis. She said “I don’t feel comfortable with this” and removed her hand. Complainant C again reached for her phone and the applicant sought to move her head towards his groin. Complainant C described herself being hysterical at this point. Subsequently, the applicant drove to the Bondi Pavilion, where they met other friends.

Proceedings in the Children’s Court

The tendency notice

16. On 7 February 2020, the Crown served an amended tendency notice that it sought to adduce the evidence of each complainant as tendency evidence in respect of each other complainant, pursuant to s 97 of the Evidence Act 1995 (NSW). The notice stated that:

“The tendency sought to be proved is [the applicant’s] tendency to:

a.   have a particular state of mind, namely, to have a sexual interest in girls under the age of 16 years, namely, 13, 14 or 15 years; and

b.    have act [sic] in a particular way, namely

i.    to engage in sexual conduct with girls under the age of 16 years, namely, 13, 14 or 15 years to the point the conduct is stopped by the girl or there is a grave risk of detection;

ii.    where each girl has a connection to water polo and met [the applicant] through this connection; and

iii.    where each girl believed that [the applicant] was in a position of either power or authority through his connection with water polo.”

The applicant’s notice of motion

17. By notice of motion dated 7 February 2020, the applicant sought orders that: the tendency evidence sought to be adduced by the Crown be ruled inadmissible; and the joint hearing of the matters listed for 11 February 2020 be vacated in favour of three separate hearings in relation to each of the three complainants.

18. It was common ground that the two relevant provisions of the Evidence Act were ss 97 and 101, which relevantly provide as follows:

“97      The tendency rule

(1)     Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—

(a)     the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b)     the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

…

101      Further restrictions on tendency evidence and coincidence evidence adduced by prosecution

(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.

(2)     Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant.

…”

19. The motion was heard by the Court below on 11 February 2020. The admissibility of the tendency evidence was dealt with as a preliminary issue, in respect of which both parties provided detailed written and oral submissions. It is necessary to refer in some detail to those of the submissions which are germane to the grounds of appeal.

The parties’ submissions on the risk of detection (relevant to admissibility under s 97)

20. The Crown submitted that the risk of detection with respect to the offence concerning Complainant A was high because it involved her photographing her breasts and sending the image to the applicant on a mobile phone.

21. In Complainant A’s interview with police on 18 December 2018 the following exchange occurred:

“Q58    OK. So wha, what are, you were talking, what are you talking on?

A    Snapchat.

Q59    OK. A, and how did he get your Snapchat account?

A    Um, so, like, he followed me on Instagram and he has his Snapchat in his bio. And so I added his Snapchat and then he messaged me.

Q60    [16:33] And what's your Instagram account name?

A    [Complainant A]

Q61    OK. So, your name.

A    Yeah.

Q62    And what's his Instagram account?

A    Um, maybe just [PQR].”

22. The Crown said, at tr. 28.4-.12:

“Yes. It was unknown, these things were unknown to the young person. He was taking, if you accept what [Complainant A] says, he was effectively taking a very, a gamble so to speak having committed this alleged incident because he didn't know who was on the other side. He didn't know if [Complainant A] was going to screen shot it. He didn't know if she had her mother nearby. All of this was unknown to the young person and it's because of that uncertainty or those matters not known to the young person and the unknown about what [Complainant A] would do, the Crown submits lends weight to the submission that there would have a high risk of detection if certain things were carried through.”

23. Mr Bellanto submitted, with respect to Complainant A, that there was no real possibility of the applicant taking a photograph of her breasts in the presence of others or being taken by surprise by others coming into the room or wherever she was when she was photographing her breasts.

24. In response, the Crown submitted as follows:

“…[I]n relation to the detection for Complainant A, just because she doesn't act in the way, for example, just because there's no evidence that she showed her friends or anything like that, it’s what’s in his mind, and the Crown says that he acts in a way that lends support to there being a higher risk of detection, because you can screenshot photos that are sent, you can screenshot certain communications, she could have had her friends there. Just because she didn't have them, doesn't mean that there was not a high risk of detection. Bearing in mind that he wouldn't necessarily know what's in her mind.”

25. The Crown submitted that the risk of detection was also high with respect to Complainant C because the car was parked in a public carpark at Bondi.

26. In respect of Complainant C, Mr Bellanto relied on the lack of evidence that “there was anyone in or about the motor vehicle” and continued, at tr. 42.43-.45:

“To suggest that there was the possibility or the reasonable possibility of detection is a submission that is not based upon the evidence.”

27. In further discussion with the magistrate about the location of the carpark, Mr Bellanto confirmed that the carpark, which had eight car spots, was between the pavilion and the promenade at Bondi: tr. 43.41-.44.

28. In response the Crown submitted that the Court below could infer a risk of detection from the circumstances that Complainant C was hysterical in a car which was parked in a public carpark at Bondi, when her friends (to the knowledge of the applicant) were in the vicinity and members of the public could be assumed to be in the vicinity.

29. Although the word “opportunistic” was not used in the tendency notice, it was used in the submissions of both parties and in the reasons of the Court below. The Crown submitted at tr. 28.32-29.6 that all of the offences were opportunistic. Indeed, Mr Bellanto accepted the description at tr. 42, when he said, at 42.32:

“Once again, all these offences are – not all, perhaps, but most of these types of offences are opportunistic.”

The parties’ submissions on whether the applicant was in a position of authority vis-à-vis each complainant

30. Mr Bellanto referred the Court below to what Edelman J said at [35]-[36] in McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 in support of his submission that the fact that the applicant played water polo and was a referee or was in a supervisory role was purely contextual and was not germane to the question of tendency.

The parties’ submissions on s 101 of the Evidence Act

31. Mr Bellanto made the following submission to the magistrate (at tr. 20.20-33):

“… First of all, we’re not challenging at any level your Honour’s inability to judge this matter fairly on the question of admissibility, and that your Honour couldn’t be objective. The points that we make are these: it's the impact upon the defence case that’s significant, in these terms.

First of all, it will have a bearing on the advice we give the young person as to whether he should give evidence or not. It will have a bearing on the calling of character, or raising good character. It will have a bearing on the rebuttal of evidence in relation to each of the complainants. It will have the effect on the tendency issue; in other words, it will be a backdoor way of introducing tendency evidence, even allowing for your Honour’s ability not to be unduly prejudiced. If the tendency is rejected and the matters proceed independently, which is what we seek - in other words, that there be separate hearings—”

32. The Crown said in its written submissions on s 101:

“Probative value substantially outweighs any prejudicial effect

27.    It is submitted that the probative value of the tendency evidence sought to be adduced in the Crown case from the witnesses to the other incidents substantially outweighs any prejudicial effect it may have on the accused.

28.    That evidence is compelling in its capacity to support the account of the witnesses to the substantive offence particularly as to the issue of whether it occurred as alleged by the complainants.

29.    Further-more there is no possibility in the Crown's submission that the tribunal of fact would misuse the evidence in an impermissible way. The tribunal of fact would not place greater emphasis on the evidence and would not react in any emotional way or place undue weight to the evidence.

30.    If the tendency is admissible, then depending on the facts found by the tribunal of fact the Court still has the discretion not to use the tendency in the way as submitted by the Crown.

31.    The risk that the tribunal of fact would misuse the evidence in a way logically unconnected with the purpose of its tender does not arise.”

33. Further, the Crown said, orally, as follows, at tr. 26.37-.44:

“Then if the crown overcomes that [s 97] then we then consider the [s] 101 test of the Evidence Act which the Crown says in this instance, that is whether the tendency advanced substantially outweighs any prejudicial effect. The Crown says because it is a judicial officer considering the matter the Crown says that there would be no way that the judicial officer would place any undue weight on the tendency that's received because once the tendency is admitted, your Honour has the ultimate discretion not to use it in the way that the Crown has advanced.”

34. The Crown referred to its written submissions on the s 101 issue (set out above) and said, orally, at tr. 30.4-.12:

“In relation to para 19 of the Crown submission [extracted above], that speaks to the 101 issue which the Crown says does not arise here. The Crown will not be engaging in any submission for your Honour to give disproportionate weight to any of the complainants' evidence. In order for your Honour to reject the tendency under 101 your Honour would have to find, the Crown submits, moving on to para 20 of the Crown submission, that the evidence would be misused by your Honour, your Honour would act unfairly, it would provoke some irrational emotional or illogical response. It simply does not arise in this instance.

The Crown accepts that there might be strength if this was a jury trial but because of the fact that both parties, no doubt, will not be inviting any of that to occur and your Honour would ultimately be directing yourself if the evidence was admitted - noting at that point the parties have drafted a list of directions that the parties would ultimately be seeking that your Honour direct yourself and one of those matters will be tendency, if it is admitted, and how it can be used. So the Crown says that that simply does not arise here.”

35. The Crown submitted, at tr. 33.46-34.5, that there were substantial practical reasons for the charges to be heard together as follows:

“So the Crown submits that ultimately, if your Honour was to separate these hearings, it would add strain to witnesses, including complainants, it would add to the length of the proceedings; it would be a highly inefficient way to proceed in the matter, when ultimately your Honour, being the tribunal of fact but also the tribunal of law, has already by that stage read the material that this Crown is seeking to rely on on [sic] tendency. Your Honour has already turned your mind to that and made a decision as to whether it's ruled in or out. So the Crown sees that there is no prejudice from that perspective, even if the tendency application is unsuccessful, because your Honour is aware of all of the matters.”

36. As to the matter raised by Mr Bellanto as to the applicant’s election to give evidence, the Crown said as follows at tr. 34.7-.33:

“Furthermore, it has been advanced by my friend that if the young person ultimately decides to give evidence in one of the matters in the joint hearing, the Crown has put the defence on notice that it would undertake to limit its cross-examination to the young person in respect of the case that he gives evidence about. The tribunal of fact, being your Honour, would ultimately direct your Honour in terms of, if there is any potential unfairness that flows because of that decision, your Honour would remind yourself that this in effect is three separate hearings dealt with in one hearing, because of efficiency and all other features. Your Honour will have to ultimately determine the respective cases individually, even if it's a joint hearing.

The Crown's ultimate submission, when your Honour receives the Crown's submission, is that in order for a separate trial to occur, or separate hearings to occur, there must be an injustice to the young person. The Crown says that the injustice is simply not borne out. My friend says that if it's a joint hearing it might bear upon the advice that he gives the young person. The Crown has made it very clear that the Crown would not use the decision that the young person decides to give evidence in respect to one case and not another against the young person.

So the Crown will not be making any submission to your Honour about that fact, and the Crown will not be saying to your Honour, inviting your Honour, ‘When you assess the young person's credibility and reliability in relation to case A, your Honour would take that into account for cases B and C.’ The Crown will simply not be doing that. The Crown will be relying on the other complainants’ evidence in isolation as rebuttal of each of the good character evidence advanced.”

37. The applicant’s counsel did not address the Crown’s undertaking in his submissions in reply in the Court below.

38. At the conclusion of the hearing on 11 February 2020, the Court reserved its decision and adjourned the proceedings until 2pm on 12 February 2020. For reasons that do not appear from the court book, the matter was further adjourned to 13 February 2020, at which time her Honour delivered reasons.

The reasons of the Court below

39. The structure of her Honour’s reasons was as follows. The first two pages were, in substance, introductory. On the second page, her Honour identified the relevant sections, ss 97 and 101 of the Evidence Act and set out the following extract from Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 (Hughes) at [18] which she described as “summarising the proper approach to ss 97 and 101(2)” of the Evidence Act:

“In a criminal proceeding, before tendency evidence may be adduced by the prosecution about the accused, the court must first ask whether the evidence has significant probative value and, if it does, the court must next ask whether that value substantially outweighs any prejudicial effect the evidence may have on the accused …”

40. Thereafter, the Court below summarised the defence submissions followed by the Crown’s submissions.

41. At tr. 55.33-.34, her Honour said:

“The Crown submitted that the s 101 issue in the Evidence Act does not arise here so the Court did not have to consider that.”

42. After summarising the parties’ submissions and the relevant evidence, her Honour said:

“With the matters before the Court, logic and human experience suggest proof that the young person is a person who is sexually interested in underage girls he has met through water polo and who has a tendency to act on that interest, is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated her account has been excluded.

The assessment of whether evidence has significant probative value in relation to each count involves consideration of two interrelated but separate matters. The first matter is the extent to which the evidence supports the tendency. The second matter is the extent to which the tendency makes more likely the facts making up the charged defence [sic, offence]. In summary, there is likely to be a high degree of probative value where the evidence by itself would[,] gather[ed] with other evidence[,] strongly supports proof of a tendency and the tendency strongly supports the proof of a fact that makes up the offence charged.

To focus on the dissimilarity in the acts and the circumstances in which they occurred ignores the tendency that they were adduced to prove. It is my view the particulars stated in the tendency notice, especially the reference to the sexual conduct occurring where there is a grave risk of detection or where the conduct is stopped by the girl serves to highlight the young person's willingness to act on his sexual interest in underage girls who he had met through water polo despite the evident danger of detection.

Having regard to the overview of the tendency evidence and all of the material supplied by the Crown, I am of the view that taken as a whole the evidence of each alleged sexual offence demonstrates a common feature that the young person through his and the complainants’ connection to water polo had a sexual interest in underage girls and the tendency to act upon that sexual interest by committing sexual offences against them opportunistically in circumstances which entailed a high risk of detection.

It is my view that the evidence provided to the Court is capable of proving that the young person is a person with a tendency to engage in sexually predatory conduct with underage girls he has met through water polo as and when an opportunity presented itself in order to obtain momentary gratification notwithstanding the high risk of detection. … The fact that the young person expressed his sexual interest in an underage girls [sic] in a variety of ways did not deprive proof of the tendency of its significant probative value.

IN THIS MATTER WHERE THERE ARE EIGHT SEPARATE CHARGES WHERE SEVEN CHARGES OF INDECENT ASSAULT RELATE TO TWO COMPLAINANTS [COMPLAINANTS B AND C] AND THE EIGHTH CHARGE IS A CHARGE WITH RESPECT TO INCITING COMPLAINANT A TO COMMIT AN ACT OF INDECENCY, IN CONSIDERING EACH COUNT SEPARATELY IT IS MY VIEW THE TENDENCY EVIDENCE WHICH IS SOUGHT TO BE ADDUCED IN RELATION TO EACH COUNT IS ADMISSIBLE.

THE EVIDENCE OF EACH COMPLAINANT WITH RESPECT TO EACH COUNT IS CROSS-ADMISSIBLE IN RELATION TO EACH OTHER COUNT AND CIRCUMSTANTIAL EVIDENCE OF A YOUNG PERSON’S SEXUAL ATTRACTION TO UNDERAGE GIRLS WHO HE HAD MET THROUGH WATER POLO AND HIS TENDENCY TO ACT UPON THAT SEXUAL ATTRACTION WHEN THE OPPORTUNITY PRESENTED, NOTWITHSTANDING THE RISK OF DETECTION. THE PROPOSED TENDENCY EVIDENCE IS TO BE ADMITTED.”

43. Following this ruling, counsel for the applicant asked the magistrate to dismiss the applicant’s notice of motion and make a formal order refusing the application for separate trials, against which an application for leave to appeal would lie to this Court under s 53(3)(b) of the Act. He indicated that this was the course which the applicant would take.

44. The Crown made lengthy oral submissions as to why her Honour ought refuse the application for separate hearings and submitted that the applicant had not discharged his onus of persuading the Court that it was appropriate to make such an order. The Crown contended that there would be no injustice to the applicant if the charges were heard together because the tendency evidence would be used only for its proper purpose by the magistrate (as had been accepted by the applicant). When her Honour invited Mr Bellanto to put submissions in response to what the Crown had said, he confirmed that he had put his submissions. In other words, the applicant accepted that the refusal of the application for separate hearings ought follow from the ruling on tendency evidence.

45. After an adjournment to permit her Honour to impose a sentence on another young person, her Honour gave ex tempore reasons (over almost three pages of transcript) for refusing the application for separate hearings. Her Honour’s reasons indicate that she did not merely refuse the application on the basis that it followed from her ruling on tendency evidence. Her Honour made careful reference to the Crown’s arguments (no countervailing arguments having been put on behalf of the applicant). Her Honour referred to the following passage from R v Bikic [2000] NSWCCA 106; (2000) 112 A Crim R 300 at [21] (Sully J, Stein JA and Kirby J agreeing):

“… [T]here is no escaping the simple proposition that the respondent had an onus to discharge if he was to show proper cause for his being granted a separate trial. That onus was not capable of being discharged, in the circumstances of the present case, without the adducing by the respondent of credible evidence in support of his application.”

46. Her Honour found that the applicant had not discharged the onus that rested on him to persuade the Court that the charges should be heard separately.

47. The applicant’s application to this Court turned solely on the correctness or otherwise of the tendency ruling and did not address the separate reasons given by her Honour for refusing his application for separate hearings.

Consideration

This Court’s jurisdiction

48. The Crown contended that the Court had no jurisdiction with respect to any of the grounds. The general principles delimiting this Court’s jurisdiction in the present application are set out below and will also be addressed by reference to each ground.

Section 53(3)(b) of the Act

49. This Court’s jurisdiction derives from Part 5 of the Act, which provides for appeals from the Local Court to this Court. The definition of Local Court in s 3(1) of the Act includes the Children’s Court. Section 53(3) relevantly provides:

“(3)  Any person against whom—

(a)     an order has been made by a Magistrate in relation to the person in any committal proceedings, or

(b)     an interlocutory order has been made by the Local Court in relation to the person in summary proceedings,

may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court.”

50. Thus, a ground of appeal against an interlocutory order must involve a question of law alone and also warrant a grant of leave before this Court can entertain the appeal.

51. As referred to above, it is common ground that the decision to refuse the applicant’s application for separate hearings was an interlocutory order for the purposes of s 53(3)(b) of the Act, albeit one which depended on an evidentiary ruling, a factor which weighs against the grant of leave: see, in the context of an appeal under s 5F of the Criminal Appeal Act 1912 (NSW), DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63 at [4]-[5] and [16] (Spigelman CJ, Kirby J agreeing). The High Court in The Queen v Iorlano; Re Mullally; Ex parte Attorney-General (Cth) (1983) 151 CLR 678 at 680; [1983] HCA 43 said:

“[I]t is highly undesirable to interrupt the ordinary course of criminal proceedings by applications for leave to appeal or prerogative relief for the purpose of challenging rulings on questions of admissibility of evidence.”

52. The Crown contended that the applicant has failed to articulate the question of law alone involved in any of its grounds, as required by s 53(3)(b).

53. The test was authoritatively stated by Gibbs CJ in Williams v The Queen (1986) 161 CLR 278 at 287; [1986] HCA 88:

“… [T]here is ‘a question of law alone’ if the question of law can be stated and considered separately from the facts with which it may be connected in a given case.”

54. The distinction between a ground that involves a mixed question of fact and law on the one hand and a ground that involves a question of law alone was considered in R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199. The Court’s consideration illustrates what distinguishes a question of law alone from other questions.

55. In R v PL, ground 2 was:

“Whether his Honour erred in applying the following principles applicable to the directions of verdicts of acquittal:

(a)    That a circumstance cannot be rejected because it alone cannot lead to an inference of guilt.

(b)    That the prosecution does not have to exclude a hypothesis consistent with innocence.”

56. Ground 3 of the appeal was:

“Whether his Honour erred in finding that it was necessary for the Crown, in order to establish that there was a case to answer, to identify a particular act on the part of the accused bringing about the injury which caused the death of the deceased”.

57. Ground 2 was held to involve a mixed question of fact and law. Spigelman CJ (McClellan CJ at CL and R A Hulme J agreeing) said at [26]:

“Even if his Honour erred in applying the correctly stated principle, that process necessarily encompassed an assessment of the facts. The process of ‘applying’ a legal principle to the facts of a case involves a mixed question of fact and law …”

58. By contrast, ground 3 was held to involve a question of law. Spigelman CJ said at [27]:

“… [T]he ground identifies, most clearly by the word ‘necessary’, a legal requirement of any Crown case of homicide. That, in my opinion, involves ‘a question of law alone’. This states a legal proposition which is a distinct and separate step in the reasoning process. In the same way as the interpretation of a statutory provision considered in JS. This legal proposition is logically anterior to its application to the facts of a particular case.”

59. The Crown submitted that several of the authorities relied on by the applicant related to appeals under s 5F of the Criminal Appeal Act, which did not require that the ground involve a question of law alone.

60. The Crown submitted that, in the circumstances of the instant case, any deficiencies in the magistrate’s reasons would not involve a question of law alone. Dr Kell referred me to JP v Director of Public Prosecutions (NSW) [2015] NSWSC 1669; (2015) 256 A Crim R 447 where Beech-Jones J said at [65]:

“A complaint that a judicial officer did not provide adequate reasons could involve a question of law alone if a question is posed in terms that are unrelated to the circumstances of the particular case, but pose a question as to the content of that obligation of the officer to address a particular matter. A complaint of this kind was upheld in Shepherd v Nestoriadis [2015] NSWSC 348.”

61. In response to the Crown’s submission, the applicant relied on the decision of Schmidt J in D v Director of Public Prosecutions (NSW) - Sydney [2013] NSWSC 60 which, as in the present case, concerned an application for leave to appeal under s 53(3)(b) of the Act against an order refusing an application for separate hearings on the basis of a ruling on tendency evidence. Her Honour identified the matters pressed on appeal as follows:

“[7] The plaintiff complained that his Honour failed to properly consider and provide adequate reasons for the refusal of the application for a separate hearing of the two charges; as well as failing to consider whether the offences arose out of the same set of circumstances; and/or were part of a series of offences of the same or a similar character; or ought to be heard and determined separately in the interests of justice, within the meaning of s 29 of the Criminal Procedure Act 1986 (NSW).

[8] The plaintiff also complained that his Honour failed to properly consider and provide adequate reasons in relation to whether the probative value of the evidence substantially outweighed any prejudicial effect it may have on the plaintiff, in accordance with s 101(2) of the Evidence Act.”

62. Her Honour noted at [15] that the DPP had submitted that there should be a consistency of approach between applications under s 53(3)(b) of the Act and those under s 5F of the Criminal Appeal Act. Her Honour did not advert to the significant difference between s 53(3)(b), where an appeal lies only where the ground involves a question of law alone, and s 5F where there is no such limitation. Her Honour proceeded to determine the question of leave, without addressing whether the grounds raised by the plaintiff in that case involved a question of law alone. As this matter was neither raised by the parties, nor addressed by her Honour, the decision ought be regarded as, in that respect, per incuriam. In these circumstances, I am not persuaded that it is of assistance to the applicant on the question whether the grounds he has raised involve a question of law alone.

Section 69 of the Supreme Court Act

63. As referred to above, the plaintiff also invokes this Court’s jurisdiction under s 69 of the Supreme Court Act which extends to errors of law on the face of the record and jurisdictional errors. This Court’s jurisdiction under this section with respect to errors of law on the face of the record is limited to “jurisdiction to quash an ultimate determination”. The order made by the Court below did not amount to an ultimate determination: Russell v Scott [2017] NSWSC 1720 at [83], [99]-[100] (N Adams J). Accordingly, in order to obtain relief under s 69, the applicant must establish jurisdictional error.

Alleged inadequacy of reasons (ground 1)

The alleged deficiencies in the reasons

64. Mr Bellanto alleged that the deficiencies in her Honour’s reasons included the following:

1. her Honour did not form a view as to whether the evidence supported the alleged tendency;

2. her Honour did not address the particulars of the proposed tendency separately, and instead “bundled” up the tendency; and

3. her Honour failed to take into account the applicant’s submissions and misconceived the evidence with respect to the risk of detection involved in the offences against Complainants A and C.

Whether ground 1 falls within this Court’s jurisdiction

65. The Crown accepted that, in some cases, inadequacy of reasons, might demonstrate constructive failure to exercise jurisdiction. However, the Crown referred to Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92; (2015) 250 A Crim R 154 in which Gleeson JA (Ward JA and Johnson J agreeing) said:

“[141]   A complaint of inadequate reasons would only constitute jurisdictional error if the inadequacy or insufficiency of reasons demonstrated that the District Court Judge misunderstood the scope of his or her jurisdiction, so as not to conduct a rehearing but, rather, undertook some more limited form of appeal: see [33] above.”

66. The applicant also sought to characterise failure to give adequate reasons as a jurisdictional error on the grounds that it amounted to a denial of procedural fairness. Mr Bellanto relied on Health Care Complaints Commission v Beck [1999] NSWCA 236 (Beck) at [12] where Fitzgerald JA (Sheller and Stein JJA agreeing) said:

“The Commission argued that the District Court misunderstood its function and failed to give adequate reasons for upholding Beck’s appeal from the Board. It was correctly submitted that a failure to give adequate reasons is not only an error of law but also a procedural unfairness. Cypressvale Pty Ltd v Retail Shop Leases Tribunal (1996) 2 Qd.R 462 at 475; Public Service Board of NSW v Osmond (1986) 159 CLR 656, per Deane J at 676.”

67. In response, the Crown submitted that the two authorities referred to by the Court in Beck in [12] were addressed to the question whether there was a general rule of common law or natural justice that required reasons to be given for administrative decisions. Dr Kell submitted that the judicial obligation to give reasons was well established and therefore no question as to the duty arose in the present case.

68. Inadequacy of reasons constitutes an error of law: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [130] (Basten JA, Handley and McColl JJA agreeing). However, I am not persuaded that inadequacy of reasons amounts to a jurisdictional error. In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme (2003) 216 CLR 212; [2003] HCA 56, McHugh J said (in the context of an administrative decision made under statute which imposed an obligation on the Minister to give reasons and no reasons had been given) at [55]:

“Jurisdiction is the authority to decide. It is not easy to accept the notion that a decision is made without authority because subsequently the decision-maker fails to give reasons for the decision.”

69. A similar conclusion was reached in obiter dictum by Tobias JA (Beazley JA and McClellan CJ at CL agreeing) in Sasterawan v Morris [2008] NSWCA 70 (Sasterawan) at [37]-[50] after a detailed review of the relevant authorities. Sasterawan was cited with approval in Elias v DPP [2012] NSWCA 302; (2012) 222 A Crim R 286 at [5] (Basten JA, Beazley JA agreeing). It is also important to recall that in the Court below her Honour gave reasons for her decision; it is only their adequacy which is called into question by the plaintiff. However, reasons or inadequate reasons, while not constituting a jurisdictional error, may reveal one. Thus, grounds 1 and 2 are related, since the alleged failure to refer to s 101 of the Evidence Act is the basis for ground 2 and would also, on the applicant’s submission, fall within ground 1.

70. Difficulties also arise in characterising inadequacy of reasons as a “question of law alone” for the purposes of s 53(3)(b) of the Act. The present case could not be said to fall into the category described in JP v Director of Public Prosecutions (NSW) above. The reasons, and the complaints made about them, are so closely related to the facts of the case, that I am not persuaded that any inadequacy of reasons involves a question of law alone as distinct from a question of law simpliciter.

The matters raised by the applicant in support of ground 1

71. Nonetheless, in order to address this ground, I propose to consider the alleged inadequacy of the reasons even though I am not persuaded that any inadequacy would amount either to a “question of law alone” for the purposes of s 53(3)(b) of the Act or a jurisdictional error for the purposes of s 69 of the Supreme Court Act.

72. The applicant’s first complaint (as set out above) is that the Court below did not form a view as to whether the evidence supported the alleged tendency. The extract from the magistrate’s reasons set out above includes reference to the requirement to consider, in the assessment whether evidence has significant probative value, “two interrelated but separate matters”. Her Honour correctly identified the first matter as being the extent to which the evidence supports the tendency and the second matter as being the extent to which the tendency makes more likely the facts making up the charged offence. These matters were authoritatively established to be relevant to admissibility under s 97 of the Evidence Act in the following passage from Hughes at [41] (Kiefel CJ, Bell, Keane and Edelman JJ):

“… In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.”

73. The applicant argued that the reasons of the Court below did not address the first matter, namely, whether the evidence strongly supported proof of the tendency. I disagree. Her Honour, after referring to the two matters in Hughes proceeded to address each of them. Her Honour’s reasons are, in my view, sufficient to show that she considered the first matter separately from the second matter and was satisfied that the evidence strongly supported proof of the tendency.

Alleged bundling up of the particulars

74. Mr Bellanto submitted that the Court below had “bundled up the particulars” and failed to address each individually. I accept Dr Kell’s submission that the particulars in a tendency notice are not to be understood as a separate alleged tendency. Rather, each particular is a feature which the Crown relies on as supporting the probative force of the tendency. It is the whole of the alleged tendency which must be shown.

Alleged error in finding risk of detection for the Bondi car park count and the image count

75. Having regard to the evidence summarised above I consider that it was open to the magistrate to find that there was a risk of detection when the applicant was alleged to have assaulted Complainant C in the Bondi carpark. Risk of detection does not depend on proof that there was someone in the vicinity since the applicant could not have known who was in the vicinity at the time. What the applicant did know, according to the evidence before the Court, was that he was in a public carpark near a main thoroughfare, that Complainant C’s friends were nearby and could be expected to try to contact her and that the complainant became hysterical, thereby increasing the risk that attention would be drawn to the car and that someone would intervene to ascertain the cause of her distress. In Hughes, the plurality found that, notwithstanding the lack of evidence that someone was in the vicinity when the appellant encouraged EE to stimulate his penis in a vehicle parked in the family driveway, the evidence was capable of proving his tendency to obtain sexual gratification “notwithstanding the high risk of detection”. On this basis, it is not fatal to the risk of detection that the evidence did not establish who, if anyone, was actually present in the vicinity.

76. Mr Bellanto submitted, with respect to the count which involved Complainant A, that a finding that there was a risk of detection was based on a misunderstanding of the charge. He argued that:

“… [I]t couldn’t be … that the complainant would have her mother nearby or a friend nearby whilst she took a photo of her exposed breasts to send to the applicant. So when [the Crown in the Court below] uses the term ‘He didn't know if [Complainant A] was going to screenshot it,’ it could be that he was referring to the photo to send. So there's a level of ambiguity.”

77. He submitted that her Honour must have misapprehended the charge and thought that it involved the applicant sending an image of his penis to Complainant A rather than Complainant A sending an image of her naked breasts to the applicant. I reject this submission. It is plain from the penultimate paragraph of the reasons, that her Honour understood the nature of the charge: inciting Complainant A to commit an act of indecency, which can only refer to her sending an image of her own breasts. Nor do I accept Mr Bellanto’s submission that “it couldn’t be” that Complainant A would have her mother or a friend nearby when she took the photograph of her exposed breasts. The submission is based on assumptions about the complainant’s behaviour. What is significant in terms of the risk of detection is that the applicant did not know what the complainant would do about his request. He can be taken to have known that it was possible that she would send the photo in the presence of others or that she would screenshot it so that she would have a record of what she had sent to him, which would have been available to be shown to, or discovered by, others who might have had access to her phone.

Alleged error in failing to refer to each submission made by the applicant

78. The applicant further submitted that the Court below committed jurisdictional error because her Honour failed to refer to a submission made on his behalf that Complainant C did not have access to her mobile phone at the time of the alleged offending (because the applicant was not allowing her to reach it). It was not necessary for the magistrate to refer to each argument made on behalf of the applicant. Her Honour’s finding that there was a high risk of detection was plainly not based on the possibility that Complainant C could have used her phone to call for help. Rather, it was based on the location of the vehicle at the time of the alleged offending (a public carpark) and the complainant’s demeanour at the time (she was hysterical).

79. The applicant also submitted that the magistrate had committed jurisdictional error in not addressing the particular in the tendency notice that the applicant was in a position of power or authority vis-à-vis the complainants. Mr Bellanto submitted that neither the word “supervision”, nor the words “power or authority” were used by her Honour.

80. It is important when reading reasons for a decision to read them fairly and as a whole. The English language is sufficiently rich to enable phrases in a tendency notice to be paraphrased without loss of meaning and for words to be used in a way that indicates that the substance and purpose of the tender has been appreciated. Indeed, choice of language is apt to indicate the reasoning process in a way that formulaic application of non-statutory words as if they were numerals in an equation does not. While her Honour did not use the word “power” in the operative part of the reasons, she described the applicant’s tendency as a “tendency to engage in sexually predatory conduct with underage girls”. The word predatory connotes a power differential and is sufficient to indicate her Honour’s acceptance that the disparity in power between the applicant and the complainants was made out on the evidence.

81. The same can be said of the criticism that her Honour described the applicant’s conduct as being opportunistic. Both parties used this word in submissions. Her Honour was entitled to use it.

Alleged failure to consider s 101(2) of the Evidence Act (ground 2)

82. The Crown submitted that the ground was addressed to the question whether the magistrate had, in fact, addressed s 101(2). Dr Kell submitted that this did not involve a question of law alone, it being common ground both that s 101 applied and that the magistrate, as a judicial officer, was obliged to give reasons for her Honour’s rulings. Accordingly, he contended that there was no jurisdiction under s 53(3)(b) of the Act and that therefore this Court could not intervene.

83. Further, Dr Kell submitted that, as the only basis for reviewing the decision under s 69 was jurisdictional error, the reasons could not be considered because this Court’s jurisdiction with respect to error of law on the face of the record was limited to ultimate determinations of fact.

84. Mr Bellanto contended that the applicant was entitled to be told (in the form of reasons) whether her Honour considered, pursuant to s 101(2), that the probative value substantially outweighed its prejudicial effect and why her Honour reached that conclusion. He submitted that her Honour’s failure to express her conclusions or provide reasons for them warranted the intervention of this Court. He also submitted that the Court below had misunderstood the Crown’s submission and had, incorrectly, assumed that the question of s 101(2) did not arise in the sense that it did not need to be considered because the hearing would not take place before a jury.

85. I reject the submission made on behalf of the applicant that the Court below misapprehended the Crown’s submission. Her Honour understood the basis on which the Crown submitted that there was no prejudice to the applicant and correctly reflected the submission in her reasons. At the commencement of the submissions, her Honour referred to each of s 97 and s 101(2). Her Honour summarised the arguments for each party on s 101(2) as well as for s 97.

86. Further, Mr Bellanto submitted in this Court, but not in the Court below, that the Crown’s undertaking did not ameliorate the prejudice. He said, in written submissions:

“It is artificial and unrealistic to suppose that an accused young person could still exercise his right to silence in some but not all hearings, on the basis that the Crown would take no issue in the Court below. The artificiality of this approach is emphasized when coupled with the issues that might arise with respect to character, both with respect to the admissibility of rebuttal evidence and the directions that her Honour might give on character (on probability and credibility). The learned Magistrate failed to address this issue in relation to the prospect of giving evidence in her reasons.”

87. As this was not a point taken below, her Honour could not be expected to have dealt with it. Further, this argument was relevant to the consideration whether there ought be separate hearings but did not affect the admissibility of the tendency evidence either under s 97 or s 101. If the tendency evidence was admitted, it was admissible in respect of each count and would, thus, be admissible in respect of each set of charges even if there were separate hearings.

88. For the reasons given above, I am not persuaded that any deficiency in the reasons involved a question of law alone or constituted a jurisdictional error. Her Honour’s reasons demonstrate that she was aware of the bases on which the evidence in respect of each complainant was argued to be inadmissible: ss 97 and 101. Her Honour fairly summarised the submissions of both parties on the two sections. What her Honour did not do was to say expressly that she was satisfied that the probative value of the evidence substantially outweighed its prejudicial effect.

89. In the circumstances of the present case, I would regard any conclusion other than that the probative value of the evidence substantially outweighed its prejudicial effect as legally unreasonable in the sense referred to in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76] (Hayne, Kiefel and Bell JJ).

90. As set out above, in argument before her Honour, Mr Bellanto specifically disavowed any potential prejudice arising from the misuse of the evidence. The “prejudice” identified by the applicant was that, if the charges were heard separately, he could decide, with respect to each complainant, whether to give evidence or not. This alleged prejudice did not arise from the evidence per se, but from the refusal of the application for separate hearings. Therefore it did not fall within s 101(2) as a matter to be weighed in the balance against the substantial probative value. In any event, this matter was the subject of a specific Crown concession and undertaking, which was designed to give the applicant that choice even if the matters were heard together. In circumstances where the magistrate had found that the evidence had substantial probative value (for the purposes of s 97), it was a foregone conclusion that its probative value substantially outweighed its prejudicial effect, given that the only prejudice identified did not arise from the admission of the evidence and was, in any event, neutralised by the Crown’s undertaking.

91. Mr Bellanto also alleged that the evidence was potentially prejudicial to the applicant because he might want to raise character. However, it is difficult to see what prejudice could arise. Even if the evidence were not admitted as tendency evidence, the Crown could still lead it in rebuttal to character evidence adduced by the applicant: s 110 of the Evidence Act.

92. Thus, there was nothing to weigh in the balance against the substantial probative value of the evidence, for the purposes of s 101(2). I accept Dr Kell’s submission that her Honour, in these circumstances, must be taken to have found that the probative value exceeded the prejudicial effect since no other conclusion was open to her Honour.

93. Even if, contrary to my finding expressed above, this Court were to consider the omission to be jurisdictional error or to involve a question of law alone, I would not be prepared to grant relief under s 69 of the Supreme Court Act or leave under s 53(3)(b) of the Act in these circumstances. As the Court of Criminal Appeal said in DSJ v R; NS v R at [6] (Gleeson JA, Hidden J agreeing):

“… [L]eave should not readily be granted, unless an appropriate case is made out showing an error of principle which is apt to cause an irregularity or an injustice: Queanbeyan City Council v Environment Protection Authority [2011] NSWCCA 108 at [25] per Whealy JA (Hall and McCallum JJ agreeing) citing R v Van Phu Ho (NSWCCA, 18 July 1994, Gleeson CJ, Mahoney JA, Dunford J, unreported).”

94. As ground 3 was consequential on grounds 1 and 2, it is not necessary to address it separately, since it has not been made out.

Conclusion

95. For the reasons given above, I am not satisfied that this Court has jurisdiction to intervene to disturb the magistrate’s refusal of the application for separate hearings. The applicant has failed to identify a question of law alone or a jurisdictional error. Further, I am not, in any event, persuaded that any error, much less one which is either jurisdictional or which involves a question of law alone, was made by the Court below. Accordingly, leave would not be granted, if I had jurisdiction under s 53(3)(b) of the Act.

Costs

96. The DPP seeks the costs of the proceedings in this Court pursuant to s 54(3) of the Act. Mr Bellanto contended that, if the appeal were dismissed, no costs order ought be made against the applicant. He relied on what Wilson J said in TR v Constable Cox [2020] NSWSC 389 at [139]:

“Without intending to prejudge the matter, I would not ordinarily make an order for costs. The plaintiff is a child, and her legal representation is publically funded, as is the representation of the defendants. My preliminary view is that each party should bear her, his, or its own costs.”

97. Section 54(3) of the Act applies because I have dismissed the application for leave to appeal by dismissing the summons. As no question of law alone is involved, it was not open to me to grant leave. Section 54(3) empowers this Court to make “such order as to the costs to be paid by the appellant as it thinks just”. As set out above, I am not persuaded that this Court has jurisdiction to intervene to disturb the magistrate’s refusal of the application for separate hearings because no question of law alone is involved in the grounds and there was no jurisdictional error. Further, I made the alternative finding that no error had been established. Nor would a grant of leave have been appropriate since the applicant has established neither an error of principle nor an injustice. In these circumstances, I consider it to be just to order the applicant to pay the DPP’s costs of the proceedings.

Orders

98. For the reasons given above, I make the following orders:

1. Dismiss the amended summons.

2. Order the plaintiff to pay the first defendant’s costs of the proceedings.

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Decision last updated: 12 June 2020