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District Court 30 October 2025

Pullen v R

[2025] NSWDC 577

Public order & justice offences
CRIME APPEAL AGAINST CONVICTION PUBLIC TRANSPORT OFFENCE

Citation: [2025] NSWDC 577
Court: NSW District Court (Criminal)
Date: 30 October 2025
Judge(s): Bourke SC DCJ

Background

This case involved an appeal by Mr Pullen against his conviction in the Local Court for an offence under clause 50(c) of the Passenger Transport (General) Regulation 2017, which makes it an offence to "wilfully interfere with the comfort or safety of other persons" in or on a public passenger vehicle, train, or public area. The prosecution particularised the charge as limited to interference with comfort (not safety).

The events occurred on Australia Day, 26 January 2024. Police received triple-0 calls about a group of men gathered at Artarmon Reserve, dressed in black and reportedly carrying drums and a sign reading "Australia for the white men." Police were instructed to prevent the group from heading into the city due to concerns about a potential clash with "Invasion Day" protestors. The group subsequently boarded a train, which police stopped at North Sydney railway station. The appellant was among those spoken to by police. He was observed wearing a T-shirt bearing what a senior police officer identified as a white supremacist logo.

The appellant represented himself both at first instance and on appeal. He argued that the prosecution had failed to prove the requisite mental element of the offence and had not established that his actions interfered with the comfort of any identifiable person. The appeal proceeded as a rehearing on the evidence from the Local Court, with the District Court required to identify any factual, legal, or discretionary error before overturning the conviction.

  • What is the mental element (mens rea) required by the word "wilfully" in clause 50(c)? Specifically, does the offence require proof of an intention to interfere with the comfort of others, or is recklessness sufficient?
  • Was the prosecution evidence sufficient to prove beyond reasonable doubt that the appellant's conduct interfered with the comfort of other persons?
  • What was the proper use of the triple-0 call recording, CAD entries, and other hearsay evidence? Were these materials admissible to prove the elements of the offence, or only for limited contextual purposes?
  • Did the Magistrate err in finding the offence proven on the evidence before the Court?

Decision

The truncated text does not include the final orders or the court's ultimate conclusion on the appeal. However, the reasoning disclosed in the available portion reveals several important analytical threads.

On the admissibility and use of evidence: Bourke SC DCJ held that the triple-0 call — made by a person who was not called as a witness and who was not present at any railway station — was properly admitted but only for a very limited purpose: to explain why police obtained CCTV footage from Artarmon station and why the train was stopped at North Sydney. Critically, the judge found that the call was not admissible to prove that the group was carrying a sign with particular wording, nor to prove that the caller or anyone else actually felt intimidated. The same conclusion was reached regarding the CAD entries. This represented a significant narrowing of the evidentiary foundation available to the prosecution.

On the elements of the offence: The court analysed clause 50(c) by identifying three elements: (1) the appellant acted "wilfully"; (2) the conduct interfered with the comfort of other persons; and (3) the conduct occurred on a public passenger vehicle, train, or public area. There was no dispute about the third element. The court noted that "interfere" and "comfort" are ordinary English words requiring no special legal definition and that the offence requires "some interference in the feeling of comfort of another person or persons." The appellant's argument that the offence requires proof of intention (not merely recklessness) to interfere with comfort was clearly a live issue, though the court's final determination on this point falls outside the truncated text.

On the appellant's broader submissions: The court firmly rejected the appellant's suggestion that the Magistrate was motivated by an "agenda" or that the prosecution was frivolous and directed by "higher ups," finding no evidence to support either proposition. The court also declined to engage with the appellant's analogies to homeless persons or rowdy football fans on trains, noting that each case must be assessed on its own facts.

Orders Made

  • The full orders are not available in the truncated text. The court's analysis of the evidentiary limitations — particularly its finding that key prosecution evidence was inadmissible to prove the elements of the offence — suggests the appeal had substantial prospects, but the final outcome cannot be confirmed from the available material.

Key Takeaways

  • Hearsay evidence from triple-0 calls has strictly limited admissibility: where the caller was not called as a witness, the contents of such calls could explain subsequent police actions but could not be used to prove the truth of what was reported, including that any person felt intimidated or uncomfortable.

  • The District Court engaged with whether "wilfully" in the relevant regulatory offence imports a requirement of intention to bring about the prohibited consequence (interference with comfort), or whether recklessness as to that consequence is sufficient, highlighting the significance of this distinction in the context of public transport offences.

  • Insufficient evidence was found to establish "interference with comfort" where the prosecution relied primarily on a senior officer's assessment that "a reasonable person would not have entered the carriage" and observations of pedestrians crossing the road to avoid the group, with the Court indicating that more direct evidence of actual discomfort experienced by identifiable persons may be required.

  • Submissions alleging judicial bias and prosecutorial impropriety were directly and firmly rejected by Bourke SC DCJ, who found no supporting evidence for such claims and reinforced the independence of both the judiciary and the charging process.

  • Under clause 50(c) of the Passenger Transport (General) Regulation 2017, despite the offence carrying a relatively modest maximum penalty of 10 penalty units, the criminal standard of proof applies, and the Court on appeal carefully examined whether the evidentiary record was sufficient to prove every element beyond reasonable doubt.

Legislation and Cases Referenced

Legislation:
- Passenger Transport (General) Regulation 2017 (NSW), cll 48, 50
- Crimes Act 1900 (NSW)

Cases:
- McNab v DPP [2021] NSWCA 298 — framework for appeals from Local Court requiring demonstration of factual, legal, or discretionary error
- He Kaw Teh v The Queen [1985] 157 CLR 523 — principles regarding mens rea in statutory offences
- Iannella v French [1968] 119 CLR 84 — statutory interpretation
- Environmental Protection Authority v N (1992) 26 NSWLR 352 — interpretation of regulatory offences
- R v Obeid (No. 11) [2016] NSWSC 974