Police v JJ (a pseudonym) [2022] NSWLC 17

Citation: Police v JJ (a pseudonym) [2022] NSWLC 17
Court: Local Court of NSW
Date: 23 September 2022
Judge(s): Nash LCM

Background

The accused was a registrable person under the Child Protection (Offenders Registration) Act 2000 (NSW), meaning he had ongoing obligations to report specified personal information to police, including the name of any internet service provider he used or intended to use. Following a change of residential address in June 2020, police alleged he had failed to report a change in his internet service provider within the required seven-day period.

The accused had attended Newtown Police Station on 19 May 2020, before his lease commenced, and gave evidence that he told the relevant officer the internet service provider at his new premises was Telstra. This information came directly from his landlord. In fact, the provider was iiNet, and the accused did not learn this until 26 August 2020 when the landlord corrected the information. Police charged him with a single offence under section 17(1) of the Act for failing to comply with his reporting obligations between 2 June 2020 and 26 August 2020.

Two contested legal issues shaped the proceedings: whether providing inaccurate personal information could itself constitute an offence under section 17, and whether the accused had a reasonable excuse for any failure under section 17(2) of the Act.

Legal Issues

Whether section 17 of the Act requires that personal information reported by a registrable person be accurate or correct, or whether it is concerned only with the non-provision of information.
Whether the Act permits a registrable person to notify a change in personal information before that change has actually taken effect.
Whether the accused had a "reasonable excuse" under section 17(2)(d) of the Act for any failure to comply with his reporting obligations.
Whether the section 21A certificate evidence of non-compliance had been rebutted on the facts.

Decision

Issue 1: Does section 17 require accurate information?

The court held that section 17 of the Act is concerned with the non-provision of information, not with its accuracy or correctness (at [81]-[87]). On a proper statutory construction, section 17 only mandates that a registrable person notify the relevant personal information or any change to it; it does not govern the truth or correctness of that information. Parliament addressed the separate scenario of knowingly providing false or misleading information in section 18, which contains its own materiality threshold. To read a correctness requirement into section 17 would produce an incongruous result given that both provisions carry the same maximum penalty (at [88]-[89]).

Issue 2: Can reporting occur before a change crystallises?

The court further held that section 11 of the Act imposes a deadline for reporting a change, but does not restrict reporting to the moment after the change has occurred (at [90]-[93]). Early notification is consistent with the Act's object of monitoring registrable persons. The phrase "or intended to be used" in section 9(1)(n) expressly contemplates future intentions, and section 11F (which requires at least 14 days' notice before changing residence) itself demonstrates that advance reporting is anticipated by the legislation (at [93]-[94]).

Issue 3: Did the accused comply with his obligations?

The court found that the accused's evidence that he told Officer Davidson on 19 May 2020 that Telstra was the internet service provider was, at the very least, reasonably plausible and might be true (at [98]). This was supported by the landlord's unchallenged evidence that she told the accused the premises were connected via Telstra (at [99]), by the accused's consistent and unshaken account under cross-examination (at [102]-[103]), by Officer Davidson's concession that his COPS records were not a complete record of all topics discussed (at [104]), and by the accused's 2 June 2020 email referencing his intention to provide further internet connection details (at [105]). Because the prosecution could not exclude the reasonable possibility that the reporting obligation had been fulfilled, the court found the section 21A certificate evidence had been rebutted and entered a verdict of not guilty (at [111]).

Issue 4: Reasonable excuse (alternative finding)

In the alternative, the court found that even if its statutory interpretation were wrong and accuracy were required, the accused had established a reasonable excuse under section 17(2)(d) of the Act on the balance of probabilities (at [112]-[122]). The accused reasonably relied on specific information from his landlord about the provider, had no reason to doubt that information, had previously received assurances from police about the sufficiency of his reporting, and was acting on legal advice that only the provider's name (not an IP address or account number) needed to be disclosed. No event during the period between May and August 2020 would have prompted him to revisit the question (at [117]-[120]).

Orders Made

Verdict of not guilty entered; charge dismissed.
Non-publication order made restricting publication of the accused's name and any material tending to reveal his identity, pursuant to section 8(1)(e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW).

Key Takeaways

Section 17 of the Child Protection (Offenders Registration) Act 2000 (NSW) is concerned with the failure to provide information, not with the accuracy of information that has been provided. Providing incorrect personal information in good faith does not, on this court's construction, constitute an offence under section 17; the legislature addressed knowing provision of false or misleading material separately in section 18 (at [81]-[89]).
A registrable person may communicate a foreshadowed change to personal information to police before that change has taken effect. Section 11 sets a deadline for reporting; it does not prohibit advance notification, and the phrase "or intended to be used" in section 9(1)(n) expressly supports this reading (at [90]-[93]).
Where a registrable person gives evidence of compliance that is reasonably plausible and might be true, that is sufficient to maintain a reasonable doubt in criminal proceedings, even where the court is not entirely certain about the veracity of that evidence. The onus remains with the prosecution throughout (at [96]-[98]).
Under section 17(2)(d) of the Act, reasonable excuse can be established where a registrable person reasonably relied on information from a third party about their personal circumstances, had no basis to doubt that information, and acted consistently with prior police assurances about the scope of their obligations (at [115]-[122]).
Statutory certificates under section 21A(1) of the Act constitute evidence of the matters certified but are rebuttable. Evidence given at hearing by a registrable person, if accepted as at least possibly true and supported by corroborating material, can be sufficient to rebut the certificate (at [111]).

Legislation and Cases Referenced

Legislation
- Child Protection (Offenders Registration) Act 2000 (NSW)
- Court Suppression and Non-Publication Orders Act 2010 (NSW)
- Evidence Act 1995 (NSW)

Cases
- 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