Tua v Commissioner of NSW Police [2021] NSWSC 1159

Tua v Commissioner of NSW Police [2021] NSWSC 1159

The Local Court order was invalid because the Magistrate made no reference to, and no finding under, s 3AA(1), which the Court treated as a gateway finding, and failed to articulate the mandatory s 3AA(3) considerations required before making an order under s 3E. The necessary statutory precondition for the order was not met, so the order was infected by jurisdictional error and had to be quashed; consequential convictions and sentences affected by that error were also set aside or remitted.

Jurisdiction
Australia
Judgment Date
10 September 2021
Procedural Posture
Judicial Review of a Local Court Order Under the Child Protection (offenders Registration) Act 2000 (nsw), With Related Leave to Appeal Against Subsequent Convictions and Sentences / Decided on the Papers; Principal Judgment; Orders Made on 10 September 2021
Outcome
The Local Court child protection registration order was quashed; extensions of time and leave to appeal were granted; consequential convictions and sentences were set aside or remitted; the Amended Summons was otherwise dismissed; no order as to costs.
Legal Topics
['child Protection Registration Order' 'jurisdictional Error' 'mandatory Statutory Considerations' 'failure to Comply With Reporting Obligations' 'extension of Time' 'leave to Appeal' 'remittal for Sentence']
['criminal Law' 'administrative Law' 'judicial Review' 'sentencing'] ['child Protection Registration Order' 'jurisdictional Error' 'mandatory Statutory Considerations' 'failure to Comply With Reporting Obligations' 'extension of Time' 'leave to Appeal' 'remittal for Sentence']

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Procedural Posture

Judicial Review of a Local Court Order Under the Child Protection (offenders Registration) Act 2000 (nsw), With Related Leave to Appeal Against Subsequent Convictions and Sentences / Decided on the Papers; Principal Judgment; Orders Made on 10 September 2021

Legal Issues

  1. 1 ['Whether the Local Court order requiring the plaintiff to comply with reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) was infected by jurisdictional error.' 'Whether the Magistrate failed to apply the statutory meaning of risk to the lives or sexual safety of children under s 3AA(1) and failed to take into account mandatory considerations under s 3AA(3).' 'Whether consequential convictions and sentences for failure to comply with reporting obligations should be set aside and remitted.']

Ratio Decidendi

The Local Court order was invalid because the Magistrate made no reference to, and no finding under, s 3AA(1), which the Court treated as a gateway finding, and failed to articulate the mandatory s 3AA(3) considerations required before making an order under s 3E. The necessary statutory precondition for the order was not met, so the order was infected by jurisdictional error and had to be quashed; consequential convictions and sentences affected by that error were also set aside or remitted.

Court Disposition

The Local Court child protection registration order was quashed; extensions of time and leave to appeal were granted; consequential convictions and sentences were set aside or remitted; the Amended Summons was otherwise dismissed; no order as to costs.

Orders

  • ['Pursuant to rule 59.10(2) of the Uniform Civil Procedure Rules 2005, extend the time to commence judicial review proceedings in respect of the decision identified in order 2 to 16 July 2021.' 'Quash the decision of the second defendant on 28 July 2020 to make an order in respect of the plaintiff under s 3E(1) of...