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District Court 4 August 2022

R v Watson

[2022] NSWDC 461

Sexual offences
CRIME CHILD SEX OFFENCES CHILD ABUSE MATERIAL

Citation: R v Watson [2022] NSWDC 461
Court: District Court of New South Wales
Date: 4 August 2022
Judge(s): Bennett SC DCJ

Background

The accused was charged with using a carriage service to access child abuse material between 14 and 20 June 2020, contrary to section 474.22(1) of the Criminal Code (Cth). She had prior convictions for similar offences and was a registrable person under the Child Protection (Offenders Registration) Act 2000, meaning she was subject to ongoing monitoring conditions. She lived with support workers funded through the National Disability Insurance Scheme.

Police attended her home on the evening of 20 June 2020 to conduct a monitoring visit. With the accused's consent, they examined her mobile phone and discovered extensive browser history containing child abuse material. She was later interviewed and made admissions. She was also found to have accessed further concerning material on a second mobile phone.

Fitness proceedings were commenced in the Local Court and referred to the District Court. By the time the matter reached hearing, all parties agreed the accused was unfit to stand trial. The central dispute concerned whether a prima facie case had been established, and specifically whether the evidence obtained during the police home visit should be excluded as improperly or illegally obtained.

Legal Issues

  • Whether the accused was unfit to stand trial for the offence charged, and whether she was likely to become fit within 12 months
  • Whether determining a prima facie case under section 20B(3) of the Crimes Act 1914 (Cth) requires the court to consider the mandatory or discretionary exclusion of evidence
  • Whether the police acted improperly or illegally when they attended the accused's home on 20 June 2020 and obtained consent to search her phone, without first ensuring she had legal advice
  • Whether the accused gave informed consent to the police presence and the examination of her phone, given her cognitive and mental health limitations
  • Whether, if there was any impropriety, the evidence should be excluded under section 138 of the Evidence Act 1995 (Cth)
  • Whether the District Court had jurisdiction under section 166 of the Criminal Procedure Act 1986 to deal with a related charge of failing to comply with reporting obligations

Decision

Issue 1: Fitness to stand trial

Bennett SC DCJ found the accused unfit to stand trial (at [128]) and unlikely to become fit within the next 12 months (at [130]). Expert reports from a clinical neuropsychologist and a forensic psychiatrist, all consistent with one another, identified diagnoses including intellectual disability, paranoid disorder, paedophilic disorder, schizophrenia, gender dysphoria, borderline personality disorder, and complex post-traumatic stress disorder. The forensic psychiatrist described fitness as borderline but concluded that, on balance, the accused should be found unfit (at [124]-[125]).

Issue 2: Whether admissibility must be considered in the prima facie case assessment

The Crown argued that the prima facie case assessment under section 20B(3) should not extend to questions of discretionary or mandatory exclusion of evidence, relying on R v Sharrouf [No 2]. The defence argued that a prima facie case must be assessed on properly admitted evidence only. Bennett SC DCJ acknowledged the difficulty of the question but concluded that the assessment must depend on whether the evidence is admissible, and found it was (at [80]-[81]). His Honour further determined that the court should examine whether the evidence, though admissible, ought to be excluded under section 138 (at [81]-[82]).

Issue 3: Police conduct and consent

The court found that the police did not act improperly or illegally (at [86]). Section 16C of the Child Protection (Offenders Registration) Act 2000 gives police power to enter premises without notice to verify reporting compliance, but the officers on this occasion attended with consent rather than purporting to exercise that statutory power. The court found nothing precluded police from attending with the registrable person's consent to conduct a monitoring visit in this way (at [94]).

Issue 4: Informed consent given the accused's limitations

Bennett SC DCJ rejected the argument that the accused's cognitive limitations meant she could not give informed consent (at [100]). The court observed that the recording showed she understood what was occurring: she demanded the return of her SIM card, produced a card containing contact details for legal assistance, and asked for her carers to call their supervisor (at [97]). The court found these responses inconsistent with a lack of comprehension (at [100]). Even if some impropriety had existed, the court conducted the section 138 discretionary analysis and found the high probative value of the evidence, the importance of the charge, and the absence of deliberate or reckless conduct by police would have weighed against exclusion (at [103]-[105]).

Issue 5: Jurisdiction over the related summary charge

The court found it had no jurisdiction under section 166 of the Criminal Procedure Act 1986 to deal with the charge of failing to comply with reporting obligations under section 17(1) of the Child Protection (Offenders Registration) Act 2000 (at [131]). That charge was remitted to the Local Court (at [132]).

Orders Made

  • The court found a prima facie case established against the accused for using a carriage service to access child abuse material.
  • The court found the accused unfit to stand trial and unlikely to become fit within 12 months.
  • Pursuant to section 20BC(5) of the Crimes Act 1914 (Cth), the accused was ordered released subject to conditions for a period of three years, including conditions as to residence, healthcare (including forensic psychological treatment), and restrictions on internet-capable devices and electronic equipment.
  • Conditions on telecommunications and devices included: no ownership of an internet-capable mobile phone; internet-capable devices permitted only under direct supervision of a support worker; tablets and laptops to be stored by Maple Community Services; gaming consoles permitted without supervision only if not connected to the internet; Fitbit-style devices permitted only if incapable of browsing the internet or communicating with others.
  • The charge of failing to comply with reporting obligations under section 17(1) of the Child Protection (Offenders Registration) Act 2000 was remitted to the Local Court for disposition, with bail dispensed with and the matter listed for mention on 11 August 2022.
  • The parties have liberty to apply to have conditions revisited within the three-year period.

Key Takeaways

  • When assessing whether a prima facie case exists under section 20B(3) of the Crimes Act 1914 (Cth), the District Court held that the assessment must account for whether evidence is admissible, and that it is appropriate to further examine whether admissible evidence ought to be excluded under section 138 of the Evidence Act 1995 (Cth) as improperly or illegally obtained (at [80]-[82]).

  • Police conducting a consensual monitoring visit to a registrable person's home, without purporting to exercise the statutory entry power in section 16C of the Child Protection (Offenders Registration) Act 2000, do not act improperly simply because they failed to arrange prior legal advice for a person with cognitive limitations, provided genuine consent was given (at [94]-[96]).

  • A registrable person's cognitive and mental health limitations do not automatically negate informed consent to a police search; the court assessed consent by reference to the person's observable conduct during the interaction, including her ability to assert rights and seek assistance in the moment (at [97], [100]).

  • Under section 20BC(5) of the Crimes Act 1914 (Cth), where an accused is found unfit and unlikely to become fit within 12 months, the court may order release on conditions as an alternative to detention in a medical or correctional facility; conditions may be tailored in detail to the accused's specific offending profile and support needs, including restrictions on particular classes of devices (at [130], [134]).

  • The District Court has no jurisdiction under section 166 of the Criminal Procedure Act 1986 (NSW) to deal with a charge of failing to comply with reporting obligations under section 17(1) of the Child Protection (Offenders Registration) Act 2000, and such a charge must be remitted to the Local Court (at [131]-[132]).

Legislation and Cases Referenced

Legislation
- Child Protection (Offenders Registration) Act 2000
- Crimes Act 1914 (Commonwealth)
- Criminal Code Commonwealth
- Criminal Procedure Act 1986
- Evidence Act 1995 (Cth)
- Justices Act 1902
- Law Enforcement (Powers and Responsibilities) Act 2002
- Telecommunications Act 1997

Cases
- Azzopardi v The Queen [2001] HCA 25
- Grassby v R [1989] HCA 45
- May v O’Sullivan (1995) 92 CLR 654
- R v Sharrouf [No 2] [2008] NSWSC 1450
- Saffron v DPP [1989] 16 NSWLR 397
- The Hunter and New England Area Health Service v A by his Tutor T [2009] NSWC 761
- Weissensteiner v The Queen (1993) 178 CLR 217
- Wentworth v Rogers [1984] 2 NSWLR 422
- Wilson v Buttery [1926] SASR 150