Templeton v Director of Public Prosecutions (NSW)

[2018] NSWCA 154

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Templeton v Director of Public Prosecutions (NSW) [2018] NSWCA 154

Hearing dates:

9 July 2018

Date of orders:

09 July 2018

Decision date:

11 July 2018

Before:

Payne JA

Decision:

(1) Dismiss the Applicant’s Notice of Motion.

 

(2) Leave granted to the Applicant to file and serve an application to lead further evidence on the judicial review application together with that evidence by 23 July 2018.

 

(3) Matter stood over to 8 August 2018 for directions to fix date of hearing of appeal.

 

(4) Accept the undertaking given by the NSW Police that until further order of the court it will take no steps to destroy the property described in Exhibit 1 as X0001207943 (Kingston Data Traveller Brand USB Drive) and X0002064324 (Elements Brand Hard Drive).

(5) Pursuant to Court Suppression and Non-publication Orders Act 2010 (NSW) s 7(a), the applicant is to be referred to in these proceedings by the pseudonym Ms Templeton

Catchwords:

REFERRALS – case management – motion seeking preservation of evidence – motion seeking stay of order placing applicant on Child Protection Register – Supreme Court Act 1970 (NSW) s 69C – whether any evidence of intention to erase evidence from seized devices

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW) ss 3, 3A, Part 3
Court Suppression and Non-publication Orders Act 2010 (NSW) ss 7(a), 8(1)(a), (c)
Crimes Act 1900 (NSW) ss 91H, 578A
Crimes (Sentencing Procedure) Act 1992 (NSW) s 9
Supreme Court Act 1970 (NSW) s 69C

Cases Cited:

Parker v Director of Public Prosecutions (1992) 28 NSWLR 282

Category:

Principal judgment

Parties:

Ms Templeton (Applicant)
Director of Public Prosecutions (NSW) (Respondent)

Representation:

Counsel:

 

Applicant (in person)
M Zelinka (Respondent)
S Given (New South Wales Police Force)

 

Solicitors:

  Solicitor for the Office of the Director of Public Prosecutions (NSW)

File Number(s):

2018/00184261

Publication restriction:

Pursuant to Court Suppression and Non-publication Orders Act 2010 (NSW) s 7(a), the applicant is to be referred to by the pseudonym Ms Templeton

Judgment Ex Tempore

[Amended in accordance with the principles in Bar-Mordecai v Rotman [2000] NSWCA 123 at [194]]

1. The applicant in these proceedings, who I will refer to as Ms Templeton, was convicted in 2016 in the Local Court of possession of child abuse material. She was sentenced to a s 9 bond under the Crimes (Sentencing Procedure) Act 1992 (NSW), which expired on 2 May 2018.

2. On 5 August 2016, the applicant’s all grounds appeal to the District Court of New South Wales before Culver DCJ was dismissed so far as it related to her conviction. The appeal in relation to sentence was withdrawn by the applicant after Culver DCJ gave the applicant a warning that her sentence may be increased if she pursued the appeal: Parker v Director of Public Prosecutions (1992) 28 NSWLR 282.

3. On 9 January 2018, the applicant filed an application in the Local Court seeking certain orders about the preservation of evidence contained on devices gathered by the New South Wales Police Force for the purposes of her criminal proceedings.

4. On 5 June 2018, after her s 9 bond had expired and almost two years after her all grounds appeal was dismissed, the applicant filed a summons in the supervisory jurisdiction of the Court under s 69 of the Supreme Court Act 1970 (NSW) seeking the following orders relating to the decision of Culver DCJ:

"1.    Inquiry into conviction;

2.    Allow my matter to be heard based on true facts and witnesses to be called."

5. The Court of Appeal Registrar has made orders that the applicant file any additional submissions in her judicial review application by 23 July 2018. The matter is listed before the Court on 8 August 2018 to fix a date for hearing the judicial review application. On this application, Ms Templeton applied for leave to make an application to lead further evidence on her judicial review application. I explained to Ms Templeton the very considerable hurdles she will face in having the Court receive further evidence on a judicial review application, but granted her leave to file and serve an application to lead further evidence on the judicial review together with that proposed further evidence by 23 July 2018.

6. On 28 June 2018, on the application of Ms Templeton, and by consent Magistrate Shields at the Parramatta Local Court made the following orders about the exhibits in the applicant’s criminal trial:

“The Exhibits in this case are to be returned immediately.

By consent orders under s219 LEPRA Act that items;

X0002064321, X0002064322, X0002064325, X0002786543 and X0002064323 be delivered to the Applicant.”

“The Exhibits in this case are to be destroyed.

Orders made under s219 (3) LEPRA Act - that items;

X0002064324 and X0001207943 be forfeited to the Crown to be disposed of in accordance with s220 LEPRA Act on or after 23 August 2018.”

7. On 3 July 2018, the applicant filed a notice of motion in this Court seeking the following orders:

“1.    To stay an order made by the Parramatta Local Court on 28 June 2018 for disposal property in police custody until the exhibits mentioned in the above named application no longer to be used in criminal proceedings.

2.    Police or Crown not to destroy, dispose or any way interfere with the content of the evidence exhibits listed in the application until the exhibits could be used in this Judicial review or for any rehearing of the matter which can arise from the review.

3. To stay reporting period for the Child Protection Register which I was placed on due to the Judicial review happening. Section 69 C of the Supreme Court Act.

4.    Never to destroy video evidence related to this proceedings (preserve by Crown).”

8. The respondents to the motion were the Director of Public Prosecutions and the NSW Police Force. It is to be noted that the NSW Police Force were earlier removed as a party to the judicial review application. No point was taken about that by the NSW Police. The Court is grateful for the assistance of their representative on the motion, Ms Given.

9. Orders 1, 2 and 4 concern certain devices containing child abuse material taken from the applicant by the NSW Police Force which were obtained for the purposes of the criminal proceedings against her. The applicant submitted that three devices containing child abuse material were the subject matter of her motion. Those devices were described in a letter, which became exhibit 1 on the motion, dated 21 May 2018 from the State Crime Command Child Abuse and Sex Crimes Squad South West Metro Child Abuse Unit addressed to the applicant. The three devices are:

X0002064324: Elements Brand External Hard Drive

X0001207943: Kingston Data Traveller Brand USB 16GB

X0002064325: Hewlett Packard Laptop Computer

10. In relation to the first two devices, the external hard drive and the USB drive, both of which are said in exhibit 1 to contain child abuse material which formed evidence in the successful prosecution of the applicant and her former partner, Ms Given offered an undertaking on behalf of the New South Wales Police Force in the following terms:

Until further order of the court, the New South Wales Police Force undertakes that it will take no steps to destroy the property described in Exhibit 1 as X0001207943 (Kingston Data Traveller Brand USB Drive) and X0002064324 (Elements Brand Hard Drive)

11. I propose to accept that undertaking. I accept that it is desirable to retain those devices and the content they contain against the contingency that Ms Templeton’s judicial review application is successful and the matter is remitted to the District Court. Given the relationship between the devices and one possible outcome of the judicial review proceedings accepting this undertaking on behalf of the NSW Police is appropriate.

12. I made clear to Ms Templeton in argument that my acceptance of the undertaking did not involve the expression of any view about the merits of her judicial review application. That application faces formidable hurdles. I also made clear that I did not accept her submission that I had power to or should in any event order the NSW Police not to delete any child abuse material on the basis of some alleged interest she had in maintaining that material to show the child the subject of that child abuse when the child became an adult.

13. As to the third device, the Hewlett Packard Laptop Computer (X0002064325), this was (in part) the subject of the first order of Magistrate Shields of 28 June 2018. The order provided that the device was to be returned immediately to the applicant.

14. Exhibit 2 before me on this application, a statement of by Detective Sergeant Jay Locke of the Child Abuse Squad in Liverpool dated 8 May 2018, which was tendered before Magistrate Shields states at [13]:

“13. With regards to item X0002064325 – Hewlett Packard laptop computer; I cannot access this password protected device and therefore cannot comment on its content.”

15. The applicant sought that the Court make orders in the form of either proposed orders 1, 2 or 4 in her notice of motion in relation to this laptop computer. It was submitted that there was, on the evidence, at least at some point in time child abuse material retained on the laptop computer and that the police would “wipe” the device unless the Court intervened.

16. The likelihood that at some time there was child abuse material retained on the laptop computer is shown by exhibit W to the applicant’s affidavit affirmed on 5 June 2018. There is, however, no evidence before me concerning whether the laptop computer has since had its content wiped. There is also no evidence of any plan by the NSW Police to take any further step (including “wiping” the computer) in relation to the laptop, other than return it to the applicant as they were ordered to do, by consent, by Magistrate Shields.

17. On this question the applicant read onto the record part of a statement of a Constable Cameron MacRaild of the New South Wales Police Force apparently made in February 2018. Officer MacRaild’s statement contains his recommendations, made prior to Magistrate Shield’s order of 28 June 2018, concerning the laptop computer. Despite the applicant’s submissions to the contrary, nothing in the parts of Officer MacRaild’s statement she read on to the record or any other material before me indicates that the New South Wales Police Force presently intends to take any action in respect of the contents of the laptop computer before returning it to the applicant. If the contents of the laptop computer have already been wiped, there is no evidence that the material can be retrieved.

18. It is clear that the laptop computer can be returned today to the applicant per the order of the Local Court. There is nothing stopping the applicant retaining the laptop computer and whatever content it contains. I do not accept the applicant’s submissions on this issue and decline to make any further order in respect of item X0002064325, the Hewlett Packard laptop computer.

19. To the extent that the applicant complains that, in order for her judicial review proceedings to be properly considered, the child abuse material needs to be before the Court, the external hard drive and the USB drive both contain the child abuse material about which she was convicted. Pursuant to the undertaking given on behalf of the NSW Police, that material will be available if she is successful in her judicial review application. It follows that prayers for relief 1, 2 and 4 in the applicant’s notice of motion should be dismissed.

20. Prayer for relief 3 in the applicant’s notice of motion should also be rejected. The applicant relies upon s 69C of the Supreme Court Act 1970 (NSW), which provides, relevantly:

“69C Stay of execution of conviction, order or sentence pending review

(1) This section and section 69D apply to proceedings in the Court for judicial review of a determination made by the District Court in appeal proceedings relating to a conviction or order made by the Local Court (or part of such a conviction or order) or sentence imposed by the Local Court.

(2) The execution of the following is stayed when proceedings seeking judicial review are commenced:

(a) a sentence imposed as a consequence of a conviction,

(b) any order other than an apprehended violence order under the Crimes (Domestic and Personal Violence) Act 2007.

…

(4) The stay of execution continues until the proceedings for judicial review are finally determined, subject to any order or direction of the Court.

….”

21. The applicant seeks a stay of reporting obligations arising from her inclusion on the Child Protection Register. This is not the subject matter of the statutory stay in s 69C(2). Those reporting obligations do not arise from a sentence imposed or an order of the court.

22. The applicant was convicted of an offence under s 91H of the Crimes Act 1900 (NSW). This is a class 2 offence under s 3 of the Child Protection (Offenders Registration) Act 2000 (NSW), meaning that it is a registrable offence and one that renders the applicant a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW): ss 3, 3A(1). The effect of this designation is that, upon becoming a registrable person, the applicant became subject by operation of the Act to the register created under the Child Protection (Offenders Registration) Act 2000 (NSW) and the reporting obligations prescribed by it: see Part 3 of the Act. There was no order of either the Local Court or the District Court which added the applicant to the register. Section 69C(2) of the Supreme Court Act 1970 (NSW) does not, in my view, have the effect of staying the operation of the reporting obligations in the Child Protection (Offenders Registration)Act2000 (NSW) by reason of the commencement of a judicial review application.

23. Even if I am wrong in this conclusion, I would not in any event, in the exercise of discretion, make an order in the form of prayer for relief 3. A judicial review application commenced more than two years after the relevant order it seeks to challenge should not properly found an order staying the operation of an important part of a child protection legislative scheme. It follows that prayer for relief 3 should also be dismissed.

24. Prior to leaving the matter I wish to record that dates were offered to the parties today for final determination of the matter. However, the solicitor appearing for the Director of Public Prosecutions (NSW), Ms Zelinka, very fairly indicated that there were, to put it neutrally, considerable difficulties with the way the current judicial review proceedings are framed and suggested that this may be a matter where the applicant would benefit from legal advice in framing her claim. That is a matter I raised with the applicant and she will no doubt consider that matter in due course. A number of submissions were made by her to me today which I pointed out did not seem to find any place in her existing judicial review application. However, the matter will be fixed for hearing on the next occasion. Ms Templeton should consider the form of her application before that date.

25. Following distribution of this judgment, I gave the parties 48 hours to make any brief written submissions about whether it is appropriate for me to order pursuant to s 7(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) that a pseudonym be used for the applicant in the published version of this judgment in order to protect the identity of the child who was the subject of the indecent assault: Crimes Act 1900 (NSW) s 578A.

26. Ms Zelinka of the Director of Public Prosecutions (NSW) submitted that it would be appropriate that a pseudonym be used in order to protect the identity of the child and to avoid potential breaches of s 578A of the Crimes Act 1900 (NSW) and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW). Ms Given supported that submission. Ms Templeton did not make any submissions on the issue.

27. I have determined to make an order pursuant to s 7(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) that the applicant is to be referred to in this judgment and for the purposes of the judicial review proceedings by the pseudonym “Ms Templeton”. I make that order on the grounds outlined in s 8(1)(a) and (c) of the Court Suppression and Non-publication Orders Act 2010 (NSW) because the order is necessary to prevent prejudice to the proper administration of justice and is necessary to protect the safety of the child, Ms Templeton’s son, who was the subject of the indecent assault.

28. I make the following orders:

1. Dismiss the Applicant’s Notice of Motion.

2. Leave granted to the Applicant to file and serve an application to lead further evidence on the judicial review together with that evidence by 23 July 2018.

3. Matter stood over to 8 August 2018 for directions to fix date of hearing.

4. Accept the undertaking given by the NSW Police that until further order of the court, it will take no steps to destroy the property described in Exhibit 1 as X0001207943 (Kingston Data Traveller Brand USB Drive) and X0002064324 (Elements Brand Hard Drive).

5. Pursuant to Court Suppression and Non-publication Orders Act 2010 (NSW) s 7(a), the applicant is to be referred to in these proceedings by the pseudonym Ms Templeton.

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Amendments

16 July 2018 - 16/07: Name of case amended to reflect order 5.

Decision last updated: 16 July 2018