Judges Must Allow Defendants to Present Their Cases

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By Paul Gregoire and Ugur Nedim

At around 3.50 pm on 1 March 2015, Mr Paul Hedderman was walking down a flight of stairs at Sydney’s Town Hall station, when he noticed a man walking up in the opposite direction with a bright object shaped like a pen in his hand.

The man was Andrew Leslie Toth. He was walking behind a woman who was wearing a frilly, knee-length skirt. As Mr Hedderman got closer, he realised that the object in Toth’s hand was a camera aimed at the back the woman’s skirt.

It appeared to be an act of upskirting: or surreptitiously photographing underneath a woman’s skirt or dress. The woman was unaware she was being filmed, and she’s never been identified.

Mr Hedderman turned and followed Toth back up the stairs. “What do you think you’re doing?” Hedderman asked. “What, what? Nothing”, Toth replied. Hedderman then accused Toth of filming up the woman’s skirt. Toth insisted that his camera wasn’t turned on.

After grabbing onto the backpack Toth was wearing, Hedderman detained the elderly man until a nearby security guard made his way over and called the police.

Charged with upskirting

On 15 March 2016, Andrew Toth appeared in the Local Court charged with one count of filming a person’s private parts, contrary to section 91L(1) of the Crimes Act. The section states:

“A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person’s private parts, in circumstances in which a reasonable person would reasonably expect the person’s private parts could not be filmed:

(a) without the consent of the person being filmed to being filmed for that purpose, and

(b) knowing that the person being filmed does not consent to being filmed for that purpose, is guilty of an offence.”

The maximum penalty is 2 years imprisonment and/or a fine of $11,000.

Section 91I of the Act defines private parts as: “a person’s genital area or anal area, whether bare or covered by underwear, or the breasts of a female person, or transgender or intersex person identifying as female.”

Local Court proceedings

A 45-second-long video clip taken from Mr Toth’s camera was tendered as evidence in court, and Mr Hedderman testified that he’d seen Toth holding the small camera up the woman’s skirt.

Toth gave evidence that he never held the pen-camera under the item of clothing. He testified that he had it outside the skirt: behind and below it. However, he conceded it may have appeared otherwise at one point, as the woman’s skirt flipped up briefly exposing her underwear.

The video clip of the incident appeared to be consistent with Toth’s account.

The defendant told the court he was filming the woman for research purposes, as he was producing two books: one called Upskirting and the other titled Female Flashers. He said he’d been researching these sort of topics for years. Indeed, he had previously published a book on exhibitionism.

Magistrate Viney accepted that Toth’s pen-camera was not held under the woman’s skirt. However, her Honour rejected the argument that the defendant was conducting research, finding that the filming was “for the purposes of sexual gratification” – a necessary ingredient of the offence.

Mr Toth was found guilty and ordered to enter an 18 month good behaviour bond.

A District Court appeal

Mr Toth then appealed his conviction to the District Court of NSW. He appeared before District Court Judge Syme on 22 March last year. He represented himself during the proceedings.

The appellant argued that there was no evidence he’d intentionally filmed the woman’s private parts, as he had never held the camera under her skirt. He submitted there was insufficient evidence that there had been no implied consent.

Toth told the court that the woman would’ve known there was a possibility that her skirt could flip back as she was walking up the steep and crowded staircase. He said she had the choice of whether to hold the skirt in place, or to allow it to move freely, and she chose the latter.

Her Honour treated Toth’s argument with scorn and scepticism, upholding the Local Court decision. The judge said found there was no other reasonable hypothesis for Mr Toth’s filming, than for “his own sexual gratification or possibly for the gratification of another.”

Blurred lines

Mr Toth appealed the District Court decision to the NSW Court of Appeal (NSWCA) on 10 November last year. His grounds of appeal included that the judge had failed to apply procedural fairness, had displayed bias, made errors of law, and made unsupported findings.

The panel of three justices outlined Toth’s claims that Judge Syme had interrupted him a total of 71 times in a little over an hour. And while some of these interruptions were neutral, many were not. The judges noted Toth’s submission that the interruptions had caused him to lose his train of thought.

Justice White found that some of the judge’s questioning went beyond attempts to understand Toth’s submissions, and had “amounted to cross-examination that might be expected from a prosecutor.”

His Honour noted that during the proceedings, District Court Judge Helen Syme had questioned Toth in a way that prevented him from making his submissions. She had also prevented him from answering questions by cutting him off.

The appeals court further noted that the judge had incorrectly stated that Toth had taken photos of “women’s genitals,” instead of using the term: “private parts.”

The justices ruled that procedural fairness had indeed been denied, and the orders of the District Court were quashed.

Justice White explained that as this finding had been made, there was no reason to consider the ground of apprehended bias. But the justices did consider other matters.

More transgressions

The NSWCA found that Judge Syme had also acted outside her jurisdiction. In that regard, her Honour had improperly made an assessment of the incident based solely on the responses to questions she asked, rather than on the evidence before the lower court as should occur in District Court appeals.

They described this as “irregular” and amounting to “jurisdictional error.”

The NSWCA panel also found that Judge Syme had made jurisdictional errors, when failing to address substantial answers Toth had provided to the court. They further found the judge had neglected to touch upon the fact that the Crown had not established that Toth’s filming was intentional.

The orders

On 22 December last year, the appeals court set aside the District Court decision as procedural fairness had been denied. It was ordered that “the rehearing of the appeal should be before a different judge,” as the former judge might not bring an “impartial mind” to the case.

It was ordered that the appeal against the orders made by Magistrate Viney in the Local Court on 30 May 2016 be remitted for determination in the District Court.

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