TM v Commissioner of NSW Police [2022] NSWSC 337

Supreme Court New South Wales

Medium Neutral Citation: TM v Commissioner of NSW Police [2022] NSWSC 337 Hearing dates: 10 February 2022 Date of orders: 25 March 2022 Decision date: 25 March 2022 Jurisdiction: Common Law Before: N Adams J Decision: (1) A declaration that the plaintiff was not as at 24 November 2016, or at any subsequent time, and is not, a "registrable person" within the meaning of s 3A of the Child Protection (Offenders Registration) Act 2000 (NSW). (2) The decision of the Local Court of NSW at Newcastle on 14 August 2018 imposing a prohibition order on the plaintiff under s 5 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) is quashed. (3) The decision of the Local Court of NSW at Katoomba on 4 August 2020 imposing an interim prohibition order on the plaintiff under s 7 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) is quashed. (4) The finding that the plaintiff was guilty of an offence against s 17(1) of the Child Protection (Offenders Registration) Act 2000 (NSW) and the bond imposed by the Local Court of NSW at Newcastle on the plaintiff on 14 August 2018 under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (H 233593898) is set aside. Catchwords: CRIME – appeal and review – judicial review – Supreme Court Act s 69 – juvenile offender convicted of three counts of possession of child abuse material under Crimes Act s 91H(2) – given notice under Child Protection (Offenders Registration) Act 2000 (NSW) s 4 that a "registrable person" – whether plaintiff a "registrable person" under s 3A of that Act – scope of exemption in s 3A(2)(c)(ii) as affected by ss 3A(5) and 3(3) – plaintiff covered by exemption – jurisdictional error – plaintiff not a "registrable person" – declaratory relief – decisions of Local Court quashed STATUTORY INTERPRETATION – approaches – definitions – purposive approach – incoherent results – inadvertence or omission by Parliament – permissible extent of repair by Court WORDS AND PHRASES – offence "committed against" a person – Child Protection (Offenders Registration) Act 2000 (NSW) s 3(3) – whether possession of child abuse material "committed against" a person Legislation Cited: Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) Child Protection (Offenders Registration) Act 2000 (NSW) Child Protection (Offenders Registration) Amendment Act 2001 (NSW) Children (Criminal Proceedings) Act 1987 (NSW) Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Code (Cth) Customs Act 1901 (Cth) Interpretation Act 1987 (NSW) Mental Health (Forensic Provisions) Act 1900 (NSW) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Behsman v Ansell (1957) 98 CLR 284; [1957] HCA 79 He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43 KE v Commissioner of Police (NSW) [2018] NSWSC 941; 273 A Crim R 227 Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v De Leeuw [2015] NSWCCA 183 R v Jones [1999] WASCA 24; 108 A Crim R 50 R v Porte [2015] NSWCCA 174; 252 A Crim R 294 R v Wood [2015] NSWCCA 231 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 Taylor v Owners – Strata Plan 11564 (2014) 253 CLR 531; [2014] HCA 9 Whiley v R [2010] NSWCCA 53 Texts Cited: Macquarie Dictionary (online ed) Category: Principal judgment Parties: TM (Plaintiff) Commissioner of NSW Police (First Defendant) Local Court of NSW (Second Defendant) Representation: Counsel: Mr P Coady with Mr A Bhasin (Plaintiff) Ms J Davidson (First Defendant)