Citation: Police v EO (a pseudonym) [2022] NSWLC 27
Court: Local Court of New South Wales
Date: 23 February 2022
Judge(s): O'Brien LCM
Background
The respondent was convicted in the District Court of New South Wales of recklessly causing grievous bodily harm (a domestic violence offence) and two further offences of assault occasioning actual bodily harm (also domestic violence offences), taken into account on a Form 1. All offences were committed against his 12-week-old daughter. He was sentenced to 4 years and 6 months of full-time custody.
The medical evidence was serious. Examination of the infant revealed multiple rib fractures from direct impact or squeezing, bruising to the face from blunt force, and a fractured right wrist caused by forceful grabbing. The respondent initially denied responsibility but later made admissions to the child's mother that were lawfully captured by covert recording.
Following the conviction, police brought an application in the Local Court seeking a Child Protection Registration Order (CPRO) under the Child Protection (Offenders Registration) Act 2000 (NSW). The respondent opposed the application.
Legal Issues
- Whether the application was sufficiently drafted to identify the relief sought and the grounds relied upon
- Whether the applicant had established the risk threshold in section 3AA(1) of the Child Protection (Offenders Registration) Act 2000 (NSW)
- Whether the factors in section 3AA(3) of that Act supported the making of an order, and whether it was appropriate to make any order
Decision
Issue 1: Adequacy of the application
The Local Court magistrate found the application to be poorly drafted. It failed to satisfactorily describe the relief sought, with the orders section described as "meaningless on its face," and it failed to properly particularise the grounds for making an order (at [17]-[22]). The document attached as grounds was, in substance, a narrative history of the investigation rather than a proper statement of the grounds relied upon.
Issue 2: Establishing the statutory risk threshold under section 3AA(1)
The respondent's convictions involved violent conduct towards a child, his daughter, and the magistrate accepted that a prior conviction for violence against a child was a relevant consideration (at [23]-[25]). However, the court found that the applicant relied solely on the material from the criminal proceedings and invited the court to infer, from the conviction alone, that the respondent posed the risk required under section 3AA(1). The magistrate held that this was insufficient (at [27]).
Issue 3: Consideration of the section 3AA(3) factors
The application did not specifically address the factors set out in section 3AA(3) of the Act (at [27]). The respondent's representatives noted that the child was protected by an Apprehended Domestic Violence Order and that the respondent would be subject to parole supervision upon release, both of which were argued to militate against the necessity of an order (at [26]).
Conclusion
The magistrate was not satisfied that the terms of the order sought were clear, that the grounds for any such order existed, or that it was appropriate to make an order under the Act (at [29]). The application was refused (at [30]).
Orders Made
- The application for a Child Protection Registration Order was refused.
Key Takeaways
- An application for a Child Protection Registration Order that fails to clearly describe the relief sought and fails to properly particularise the grounds relied upon is susceptible to refusal on those grounds alone, as the Local Court found here (at [17]-[22]).
- Relying solely on the brief of evidence and conviction from the underlying criminal proceedings, without more, is insufficient to establish the risk threshold required by section 3AA(1) of the Child Protection (Offenders Registration) Act 2000 (NSW) (at [23]-[27]).
- A conviction for an offence of violence against a child is a relevant factor under the Act, but it does not automatically satisfy the statutory test for the making of a registration order where the relevant offences do not automatically trigger registration obligations (at [23]-[25]).
- The application was also required to specifically address the factors enumerated in section 3AA(3); inviting the court to draw the necessary inferences from the conviction record, without addressing those factors, was held to be an inadequate approach (at [27]-[29]).
- Procedural deficiencies in the conduct of the application, including failure to comply with directions to file submissions and supporting material, were noted by the court as contributing to the unsatisfactory state of the proceedings (at [10]).
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 35(2), 59(1)
- Child Protection ( Offenders Registration) Act 2000 (NSW) , ss 3AA(1), 3AA(3), 3E
Cases
- O’Neill v Commissioner of Police [2020] NSWSC 1805