Citation: Hinchley v R [2023] NSWDC 18
Court: District Court of New South Wales
Date: 8 February 2023
Judge(s): Scotting DCJ
Background
The appellant was convicted in 2018 of registerable offences and, upon release from custody in May 2019, became subject to the reporting obligations imposed by the Child Protection (Offenders Registration) Act 2000 (NSW). He made his initial report at Balmain Police Station on 9 May 2019 and completed an annual report on 5 May 2020.
Between September and December 2020, the appellant attended the police station on three occasions to report changes to his personal information, including new internet service providers, email addresses, and mobile numbers. These reports were made under section 11 of the Act, which obliges registerable persons to notify police of changes to their relevant personal information.
It was not in dispute that the appellant did not attend the police station at any time during May 2021, the calendar month by which his annual report was due. He was arrested on 4 June 2021 and acknowledged at the time that he had known of the obligation and that it had "slipped his mind." He was convicted in the Local Court and brought this appeal against that conviction.
Legal Issues
- Whether the appellant's three attendances at the police station between September and December 2020, made under the section 11 change-of-information obligation, could on their proper construction satisfy the separate annual reporting obligation under section 10 of the Act.
- Whether the appellant had a reasonable excuse for failing to comply with the annual reporting obligation during May 2021.
- Whether the Magistrate's reasoning disclosed error warranting the District Court's intervention on appeal.
Decision
On the primary statutory construction argument, Scotting DCJ rejected the appellant's contention that his section 11 change-of-information reports could satisfy the section 10 annual reporting obligation. The Court held that the two obligations are separate and distinct, each serving a different legislative purpose. Section 10 requires a registerable person to attend in person and report all relevant personal information each year within the calendar month corresponding to the anniversary of their first report. The fact that a person has attended a police station and provided information under section 11 at some point during the preceding 12 months does not discharge that separate annual obligation.
On the reasonable excuse argument, the Magistrate had relied on unchallenged evidence that the appellant was fully aware of his reporting obligations and on his own admissions at the time of arrest. The appellant had told police the obligation had simply "slipped his mind," and told his mother the requirement "was on the form." Scotting DCJ found this reasoning was open to the Magistrate and independently concluded there was no reasonable excuse.
The Court also considered whether the content of the statutory notices issued to the appellant could provide a basis for a reasonable excuse argument. The statutory notices and the forms the appellant signed each contained clear references to his reporting period and specified that his annual report was due in May 2021. Each form also stated plainly that he was required to attend a police station to report each year. These documents provided no foundation for a reasonable excuse.
Having conducted an independent review of the evidence, Scotting DCJ was satisfied beyond reasonable doubt that the prosecution had proved all elements of the offence and found no error in the Magistrate's decision. The appeal was dismissed.
Orders Made
- Appeal against conviction dismissed.
- Penalty imposed by the Magistrate confirmed.
Key Takeaways
- The District Court held that the section 10 annual reporting obligation and the section 11 change-of-information obligation under the Child Protection (Offenders Registration) Act 2000 are distinct requirements, and compliance with one does not satisfy the other.
- A conviction for failing to comply with the annual reporting obligation is not displaced by a registerable person's interim attendances at a police station to report changes to personal information during the preceding 12 months.
- Under section 10, a registerable person must attend a police station in person and complete a full annual report within the calendar month corresponding to the anniversary of their first report, regardless of any other reporting activity during that year.
- No error was established in the Magistrate's reasoning: the unchallenged evidence of police and the appellant's own admissions at arrest provided a sufficient basis to reject the reasonable excuse argument.
- In conducting an appeal under section 18 of the Crimes (Appeal and Review) Act 2001, the District Court undertakes a rehearing on the certified transcript and must be satisfied that the trial judge was wrong before intervening, with the prosecution retaining the onus of proving guilt beyond reasonable doubt throughout.
Legislation and Cases Referenced
Legislation
- Child Protection (Offenders Registration) Act 2000 (NSW), ss 3A, 9, 10, 11, 14A, 17(1)
- Child Protection (Offenders Registration) Regulation 2015 (NSW), cl 12
- Crimes (Appeal and Review) Act 2001 (NSW), s 18
- Interpretation Act 1987 (NSW), ss 33, 34
Cases
- AG v Director of Public Prosecutions [2015] NSWCA 218
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27
- Certain Lloyd's Underwriters v Cross (2012) 87 ALJR 131
- Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503
- Fox v Percy (2003) 214 CLR 118
- Gianoutsas v Glykis [2006] NSWCCA 137
- Lumney v Director of Public Prosecutions [2021] NSWCA 186
- McNab v Director of Public Prosecutions [2021] NSWCA 298
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
- Re Bolton; Ex Parte Beane (1987) 162 CLR 514
- Taylor v Owners of Strata Plan 11564 (2014) 253 CLR 531
- Unions NSW v New South Wales (2019) 264 CLR 595