Patel v DPP [2023] NSWDC 95

District Court New South Wales

Medium Neutral Citation: Patel v DPP [2023] NSWDC 95 Hearing dates: 3 March 2023 Date of orders: 14 April 2023 Decision date: 14 April 2023 Jurisdiction: Criminal Before: Lerve DCJ Decision: Appeal upheld, conviction set aside Catchwords: Failure to Comply with Reporting Obligations – Child Protection (Offender's Registration) Act – whether date of alleged offence is an element or particular – finding that it is an element and not a particular. Legislation Cited: Child Protection (Offenders Registration) Act, 2000 Cases Cited: 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 Category: Principal judgment Parties: Yashkumar PATEL Director of Public Prosecutions Representation: Solicitors: Mr S Groch, Tankard Lawyers (Appellant) Ms H McMillan for Director of Public Prosecutions, (Respondent) File Number(s): 2022/249081 Publication restriction: No

Judgment on Conviction Appeal Introduction 1. By way of notice of appeal to the District Court the appellant appeals against a conviction recorded at the Wagga Wagga Local Court on 8 December 2022. The Court attendance notice contains the following under the heading "details of offence": Child Protection (Offenders Registration) Act, 2000, Section 17(1) Fail to Comply with Reporting Obligations Between 11:45 am and 12:10 pm on 18/08/2022 at Glenfield Park did without reasonable excuse, fail to comply with his reporting obligations under the Child Protection (Offenders Registration) Act 2000. 1. As I understand the submissions the matter relates to the appellant failing to give to the relevant authorities an email address. There does not appear to be any real dispute that the appellant did not disclose that email address. The appellant's case is the relevant email address is one that he has had for many years and indeed one he has had since he was a student. 18 August 2022 was the date on which police attended the appellant's residence to conduct checks in accordance with the Child Protection (Offenders Registration) Act, 2000. 2. Again, as I understand the submissions, it is put on behalf of the appellant that he cannot be guilty of the charge as it is pleaded on the Court attendance notice. Essentially this is because of the averment that the offence occurred on 18 August 2022. It occurs to me the outcome of this appeal is dependent on whether the date of the offence, or at least the date of the alleged offence is an essential ingredient rather than a particular. 3. The appellant was originally charged with two counts of Failure to Comply with Reporting Obligations. The transcript of the proceedings before the learned Magistrate indicates (p 1:36) that the prosecution particularised sequence 1 (of H90754054) as not reporting an email address, being wash1202202131035@gmail.com, and sequence 2 as not reporting an internet username "skyyash". 4. The appellant was acquitted in respect of sequence 2 but convicted of sequence 1. At p 8:11 and following the learned Magistrate said in respect of sequence 2: "However, with respect to sequence 2 there is just not evidence at all in the prosecution brief and the prosecution carries the onus as to when that username, if I have got the expression right, was created. I am asked to infer that it was created more than seven days ago prior to the arrival of the police because of the words used by the defendant at question 173, 'No, I'm not looking like using that one frequently'. The defendant, I am not being critical but his English is not perfect so it is a bit hard to know what he meant by that. He did not give evidence. He did not have to give evidence and I cannot draw any adverse inference because he did not give evidence. I cannot use that fact to fill gaps in the prosecution case." 1. It is plain enough from those reasons that the appellant was acquitted of sequence 2 as the prosecution were unable to prove beyond reasonable doubt when it was that that user name came into existence.