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District Court 16 October 2024

R v SLD (No 3)

[2024] NSWDC 480

HomicidePublic order & justice offences
CRIME JUDGE ALONE TRIAL HIGH RISK OFFENDER NON ASSOCIATION WITH CHILDREN CONDITION MEANING OF ASSOCIATE

Citation: R v SLD (No 3) [2024] NSWDC 480
Court: District Court of New South Wales
Date: 16 October 2024
Judge: Fitzsimmons SC DCJ

Background

The accused was sentenced in 2002 to 20 years' imprisonment for the murder of a three-year-old child. Following release, he was made subject to an Extended Supervision Order (ESO) imposed by the Supreme Court on 20 September 2023. An ESO is a court order under the Crimes (High-Risk Offenders) Act 2006 that imposes strict conditions on a person's conduct in the community. One condition of the accused's ESO prohibited him from associating with children under 18 years of age without permission.

On 24 October 2023, the accused visited Bulli Beach. An off-duty Community Corrections Officer observed various interactions between the accused and women accompanied by young children. The accused was subsequently arrested and charged with three counts of failing to comply with the ESO, contrary to s 12 of the Crimes (High-Risk Offenders) Act 2006.

The accused elected a judge alone trial, having received legal advice before doing so. The central dispute across all three counts was whether the accused's conduct on the day constituted "associating" with children within the meaning of the order.

  • What does "associate" mean in the context of a non-association condition in an ESO, given the term had not previously been judicially considered in this context?
  • Does merely being in the presence of a child, or speaking to an adult in a child's presence, satisfy the definition of "associating" with that child?
  • Did the Crown prove beyond reasonable doubt each element of each of the three charges?

Decision

The meaning of "associate"

The court undertook a careful statutory interpretation of the word "associate" in the order. The ESO adopted the definition from the Crimes (Sentencing Procedure) Act 1999: "being in company with or to communicate by any means." Fitzsimmons SC DCJ noted that dictionary definitions alone cannot resolve the precise legal meaning of a term in its particular context, drawing on authority from the Court of Appeal and the High Court. The court concluded that "associate" carries both qualitative and quantitative elements, requiring something more than mere proximity. Some form of connection of substance between the accused and the child is necessary.

The court rejected the Crown's submission that being in the immediate presence of a child, or conversing with an adult in a child's presence regardless of content, automatically constitutes association with that child. There was evidence that the accused had previously been in a retail gaming shop alongside children without that being treated as a breach. The court also rejected the suggestion that speaking to an adult could amount to "associating with the child by proxy."

Count 1: Not guilty

The first count was proved almost entirely through the evidence of Lucas Clark, the Community Corrections Officer who had observed the events. The court was not satisfied beyond reasonable doubt that Clark's account was sufficiently reliable to establish the necessary conduct for Count 1, and accordingly returned a verdict of not guilty.

Count 2: Guilty

On Count 2, the court was satisfied beyond reasonable doubt that the accused had interacted with a child in a manner that went beyond mere proximity, establishing a connection of the kind required to constitute association. The accused knew the person he was interacting with was under 18, and the conduct occurred without permission under the DSO. Each element of the offence was proved beyond reasonable doubt, and a verdict of guilty was returned.

Count 3: Not guilty

For Count 3, the accused had approached a mother who was cradling and feeding an infant, patted a dog in the mother's company, and engaged in brief conversation with the mother about matters entirely unrelated to the child. The court found this interaction lacked any element of connection between the accused and the child. The brief, incidental nature of the contact did not rise to the level of association as required by the order.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The District Court held, for the first time in this context, that "associate" in a non-association condition of an ESO requires something qualitatively and quantitatively more than mere physical proximity to a child. A connection of substance between the accused and the child must be established.

  • Merely speaking to an adult in the presence of a child, even if the conversation occurs nearby, does not constitute association with that child by proxy, provided the interaction has no element of connection to or with the child.

  • Where conduct in a child's presence gives rise to something more, resulting in an actual connection to or with the child, that conduct may satisfy the association requirement even if the accused did not directly speak to the child.

  • In returning mixed verdicts across the three counts, the court demonstrated that each charge arising from events on the same day must be assessed separately, on the evidence specific to it, rather than through a global or cumulative assessment.

  • The verdicts of not guilty on Counts 1 and 3 were expressly stated not to constitute approval of the accused's conduct or criticism of the off-duty corrections officer who raised concerns. The acquittals reflected the Crown's failure to prove the specific legal elements of association to the criminal standard.

Legislation and Cases Referenced

Legislation
- Crimes (High-Risk Offenders) Act 2006 (NSW), ss 3, 5(b), 9(1)(a), 12
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Procedure Act 1986 (NSW), ss 132(1), 132(6), 133(2), 133(3)
- Terrorism Legislation Amendment (Police Powers and Parole) Act 2017 (NSW)

Cases
- Fleming v R (1998) 197 CLR 250
- TAL Life Ltd v Shuetrim; MetLife Insurance Ltd v Shuetrim [2016] NSWCA 68
- Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664
- Coco v The Queen (1994) 179 CLR 427
- State of New South Wales v SLD [2023] NSWSC 978
- State of NSW v Wilkinson [2020] NSWSC 1813
- Athens v Randwick City Council [2005] NSWCA 317; 64 NSWLR 58
- Kirkpatrick v Kotis (2004) 62 NSWLR 567
- Laming v Jennings [2018] VSCA 335
- Sertari Pty Ltd v Quakers Hill SPV Pty Ltd [2014] NSWCA 340
- Repatriation Commission v Nation (1995) 57 FCR 25
- Goyal, in the matter of ACN 154 520 199 Pty Ltd (in Liq) [2018] FCA 129