Citation: Patel v DPP [2023] NSWDC 95
Court: District Court of New South Wales
Date: 14 April 2023
Judge(s): Lerve DCJ
Background
The appellant was a registrable person under the Child Protection (Offenders Registration) Act 2000. On 18 August 2022, police attended his residence and, during a consensual search of his mobile phone, discovered an email address and an internet username that had not been declared as required. The email address was one the appellant had held since his university days in India, predating his registration.
The appellant was charged with two counts of failure to comply with reporting obligations. He was acquitted on the second count (relating to an internet username) because the prosecution could not prove when that username came into existence. He was convicted on the first count, relating to the undisclosed email address, and appealed to the District Court.
The core dispute on appeal was whether the charge, as pleaded on the Court Attendance Notice with 18 August 2022 as the date of the offence, could support a conviction. That date was the date police detected the non-disclosure, not the date on which the appellant's reporting obligation had actually expired.
Legal Issues
- Whether the prosecution could rely on section 11 of the Act (changes to personal information) to ground the charge, given the email address predated the appellant's registration.
- Whether the initial reporting obligation under section 9A of the Act was limited in time, expiring 7 days after sentencing.
- Whether the date of the alleged offence is an essential element of the charge that the prosecution must prove beyond reasonable doubt, or merely a particular (a piece of supplementary information that does not need to be proved to the same standard).
- Whether, given the date pleaded on the Court Attendance Notice, the conviction could stand.
Decision
Issue 1: Section 11 cannot ground the charge
The District Court held that the prosecution could not rely on section 11 of the Act, which deals with changes to personal information, because the email address was not a change in circumstances. The appellant had possessed that address for many years before becoming a registrable person. Accordingly, the failure to disclose it could not constitute a reportable change (at [24]).
Issue 2: The obligation arose under section 9A and was time-limited
The court determined that criminal liability, if any, attached under section 9A, which requires a registrable person to report personal information within 7 days of sentencing. On the facts, that obligation expired on 18 January 2022. The offence of failing to disclose the email address was therefore complete on the eighth day following sentence and was not a continuing offence (at [25], [29]).
Issue 3: Date of offence is an essential element, not a mere particular
Drawing on the reasoning in Environment Protection Agency v Sydney Water Corporation [2021] NSWLEC 4 and the earlier principle in Sloggett v Adams (1953), the court held that the date of the offence is an essential element or ingredient of the charge that the prosecution must prove beyond reasonable doubt. It is not a mere particular (at [29]).
Issue 4: The conviction cannot stand as pleaded
Because the Court Attendance Notice pleaded 18 August 2022 (the date of detection) as the date of the offence rather than the actual date of the offence, the conviction could not stand (at [32]). The court noted that, had the prosecution applied to amend the date in the notice, that application would have been granted without hesitation given the purposes of the legislation. No such application was made (at [31]).
Orders Made
- Appeal upheld, conviction set aside.
Key Takeaways
- Under the Child Protection (Offenders Registration) Act 2000, where an email address or other personal information predates a person's registration, the obligation to disclose it arises under section 9A (the initial reporting obligation) rather than section 11 (changes to personal information), and that obligation expires 7 days after sentencing (at [24]-[25]).
- A conviction for failure to comply with reporting obligations under the Act, where the breach lies in the failure to make an initial report, relates to a completed offence, not a continuing one (at [29]).
- The date of the offence is an essential element of a charge of failing to comply with reporting obligations, which the prosecution must prove beyond reasonable doubt. It is not a mere particular that can be treated as subsidiary or approximate (at [29]).
- Pleading the date of detection rather than the date on which the offence was committed is a fatal defect in the charge where the date of the offence is an element, not a particular (at [32]).
- The District Court observed that an amendment to the date in the Court Attendance Notice would have been granted had the prosecution applied for one, which suggests the procedural pathway existed to remedy the defect (at [31]).
Legislation and Cases Referenced
Legislation
- Child Protection (Offenders Registration) Act , 2000
Cases
- Environment Protection Agency v Sydney Water Corporation [2021] NSWLEC 4
- Environment Protection Authority v Alkem Drums [2000] NSWCCA 416; (2000) 113 LGERA 130
- Sloggett v Adams (1953) 70 WN (NSW) 206