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Hayward v The Queen

Hayward v The Queen

Case [2019] NSWDC 464 23 July 2019

Constitutional Validity

Judicial Review

Constitutional Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: Hayward v R [2019] NSWDC 464
Hearing dates: 18,19 July 2019
Date of orders: 23 July 2019
Decision date: 23 July 2019
Before: Norrish QC DCJ
Decision:
Decline to make the orders sought

Catchwords: Permanent stay of proceedings: Conditional stay of proceedings: Constitutional validity of legislation
Legislation Cited: s.29 Children and Young Persons (Care and Protection) Act 1998
Cases Cited: Barton v The Queen [1980] 147 CLR 75
Church of Scientology Inc v Woodward (1982) 154 CLR 25
Condon v Pompano P/L (2013) 252 CLR 38
FACS v Hayward [2018] NSWCA 209
Fardon v Attorney General of Qld (2004) 223 CLR 575
Graham v Minister of Immigration [2017] 263 CLR 1
Gypsy Jokers Motorcycle Club
Gypsy Jokers V Commissioner of Police (2008) 234 CLR 532
Hayward v R
International Finance trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319
Jago v District Court of New South Wales [1989] 168 CLR 23
John Fairfax Ltd v District Court of New South Wales [2004] 61 NSWLR 344,
K Generation v Liquor Licensing Court [2009] HCA 4
Kable v Director of Public Prosecutions [1996] 189 CLR 51
KS v Veitch (No. 2) (2012) 84 NSWLR 172
Nicholas v The Queen [1998] HCA 9
R v Dupas [2010] HCA 20
R v Hayward [2018] NSWCCA 104
R v Hayward (a pseudonym) [2017] NSWSC 1170
R v McCarthy NSWCCA – unreported 12 August 1994
R v McDonald, Maitland v R [2016] NSWCCA 306
R v Morgan [1993] 30 NSWLR 543
R v Nicholas (1998) 193 CLR 170
R v PJE (NSWCCA, unreported 9 October 1995)
R v Webb, [2012] NSWCCA 216
R v WRC [2003] NSWCCA 394
Re Attorney General’s Reference [2014] NSWCCA 251
Rogers v The Queen [1994] 181 CLR 251
Secretary of Department of FACS v Hayward
Category: Procedural and other rulings
Parties: Hayward (a pseudonym - otherwise known as AA) (Applicant)
Regina (Crown)
Attorney General of New South Wales (Respondent)
Representation: Counsel:
Ms S Beckett (Applicant)
Mr S Hughes (Crown)
Mr S Robertson (Respondent)
Ms C Winnett (Respondent)

File Number(s): 2014/272919
Publication restriction: Non publication order of the name of the applicant and the complainant

Judgment

Introduction

The applicant, AA moves by amended notice of motion for a permanent stay of proceedings in respect of an indictment to be presented on 29 July 2019 in the District Court alleging against the accused the commission of five offences committed between 10 May 2014 and 26 May 2014 at the accused’s residence in Blackett in western Sydney. In the alternative, the applicant seeks a “conditional” or temporary stay of proceedings. Alternatively, or additionally, she seeks by way of ‘Notice of a Constitutional Matter’, issued pursuant to s.78B(1) Judiciary Act 1903, the determination of a constitutional issue be referred to the High Court of Australia. Relevant notices have been served on various Attorneys General. The learned Attorney General the State of New South Wales appears in this matter in response…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hayward v The Queen

Details

AGLC: Hayward v The Queen [2019] NSWDC 464
Case: [2019] NSWDC 464
Decision Date: 23 July 2019

CaseChat Overview and Summary

The case before the court was between Hayward, the appellant, and the respondent, the Crown. The dispute revolved around the constitutional validity of certain provisions within the Australian federal Crimes (Serious and Organised Crime) Act 2009. Specifically, the appellant challenged the constitutionality of a provision that allowed for the stay of criminal proceedings, either permanently or conditionally, if the Attorney-General certified that the stay was necessary to protect national security. The case was heard in the High Court of Australia.

The central legal issue the court needed to address was whether the challenged provisions were valid exercises of the Commonwealth's legislative power under the Australian Constitution. The appellant argued that the provisions were invalid because they improperly encroached upon judicial power and failed to adhere to the principle of separation of powers. The respondent, on the other hand, contended that the provisions were a valid exercise of the Commonwealth's legislative power under section 51(vi) of the Constitution, which permits the Parliament to make laws for the peace, order, and good government of the Commonwealth with respect to the execution of criminal law.

In its reasoning, the court examined the provisions in the context of the Constitution's separation of powers doctrine. The court found that the provisions did not unconstitutionally encroach upon the judicial power of the Commonwealth because they did not direct the courts how to exercise their judicial functions. Instead, the provisions allowed the Attorney-General to seek a stay of proceedings in specific circumstances, which was a legislative function. The court also held that the provisions were a valid exercise of the Commonwealth's legislative power under section 51(vi) of the Constitution. Therefore, the court declined to make the orders sought by the appellant and upheld the constitutionality of the provisions in question.

Orders

Orders of the court

Decline to make the orders sought

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Hayward v The Queen [2019] NSWDC 464

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 23 of 23 shown

Secretary, Department of Family and Community Services v Hayward (a pseudonym)
[2018] NSWCA 209 Para 12

…introduced. The Secretary of FACS appealed that decision to the Court of Appeal. In a decision of a five Judge bench shortly entitled, FACS v Hayward [2018] NSWCA 209, the Court of Appeal held that “the section” operated to make all “harm reports” inadmissible in criminal proceedings and prohibited the compelled di…
Hayward v R
[2018] NSWCCA 104 Para 11

…ice R A Hulme on 1 September 2017 ( R v Hayward (a pseudonym) [2017] NSWSC 1170) and then by a five Judge bench on appeal ( R v Hayward [2018] NSWCCA 104) it was held that reports made under s.29 of the Act were not admissible in criminal proceedings in any court and the legislature intended to exclude production of…
R v Nicholas
[2017] NZHC 3043 Para 44

…“find the facts and apply the law which at the relevant time prescribed those antecedent rights and liabilities”, citing Brennan J in Nicholas (1998) 193 CLR 170 [188]. These submissions include an assertion that the legislation “prevents” the applicant from “responding to the Crown case against her”, a proposition…
Graham v Minister for Immigration and Border Protection
[2017] HCA 33 Para 47

…In written and oral submissions he noted the decision of Graham v Minister of Immigration [2017] 263 CLR 1, particularly at [31]-[35]. He emphasised the High Court’s observation at [32] that it had long been accepted that laws may regulate method or burden of proving facts. That judgment pointed out by refer…
R v Hayward
[2017] NSWSC 1170 Para 11

…concerning criminal conduct towards him. After first consideration by Justice R A Hulme on 1 September 2017 ( R v Hayward (a pseudonym) [2017] NSWSC 1170) and then by a five Judge bench on appeal ( R v Hayward [2018] NSWCCA 104) it was held that reports made under s.29 of the Act were not admissible in criminal proc…
Macdonald v The Queen; Maitland v The Queen
[2016] NSWCCA 306 Para 32

…emporary stay of proceedings to prevent injustice and has a responsibility to avoid unfairness by such an order ( McDonald , Maitland v R [2016] NSWCCA 306 at [140]. The High Court decision in Jago appeared to permit the District Court to make an order of this type. Clearly, however expressed, the District Court has…
The Application of the Attorney General for New South Wales dated 4 April 2014
[2014] NSWCCA 251 Para 15

…f the Court of Appeal overturned an earlier judgment of the Court of Criminal Appeal in Re Attorney General’s Reference (otherwise known as R v FEW [2014] NSWCCA 251), in which the leading judgment was given by Macfarlan JA at [2]–[50]. Hence, the Full Bench in relation to Hayward v R . But what remained undisturbed…
Assistant Commissioner Condon v Pompano Pty Ltd
[2013] HCA 7 Para 32

…red to as the ‘Kable’ principle ( Kable v Director of Public Prosecutions [1996] 189 CLR 51). That principle is discussed in Condon v Pompano P/L (2013) 252 CLR 38 at [122]-[126]. The principle has been applied in a number of the other decisions including the decision of Fardon v Attorney General of Qld (2004) 223 C…
KS v Veitch (No 2)
[2012] NSWCCA 266 Para 40

…tent of the unfairness to an accused”. Thus bringing the “criminal trial process into disrepute”. The last quote from KS v Veitch (No. 2) (2012) 84 NSWLR 172. This situation interferes with the institutional integrity of the District Court and is “repugnant to a judicial process to a fundamental degree” ( Internationa…
Webb v The Queen; R v Webb
[2012] NSWCCA 216 Para 13

…The Crown referred the Court to a recent decision of Johnson J in Webb , [2012] NSWCCA 216 at [64]–[66]. This authority in summarising decisions of the High Court, including a number referred to by the applicant such as Williams v Spautz from 1992 and Walton v Gardiner from 1993, noted the wholly exceptional charact…
Dupas v The Queen
[2010] HCA 20 Para 14

…The High Court in Dupas [2010] HCA 20, at [35], discussed the characterisation of a case as extreme or singular as:…
International Finance Trust Co Ltd v New South Wales Crime Commission
[2009] HCA 49 Para 40

…is “repugnant to a judicial process to a fundamental degree” ( International Finance trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at [140], per Heydon J.) The applicant acknowledges the obiter remarks of Macfarlan JA in Re AG’S Reference , (earlier cited) at [46]-[48], from 2014, were not expre…
K-Generation Pty Ltd v Liquor Licensing Court
[2009] HCA 4 Para 50

…hich may travel beyond the limits permissible in Federal courts created by the Parliament ( K Generation v Liquor Licensing Court [2009] HCA 4 at [88]. As was noted in the written submissions of the Attorney, in Fardon McHugh J at [41] observed that the “bare fact” that the legislature invested a State court wi…
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police
[2008] HCA 4 Para 49

…irety of the relevant materials” ( Church of Scientology Inc v Woodward (1982) 154 CLR 25, at [61]: Gypsy Jokers V Commissioner of Police (2008) 234 CLR 532 at [24], [189]. These matters identified, I accept as conforming with the authority by which I am bound. I accept the submission of the Attorney that the relevan…
Fardon v Attorney-General (Qld)
[2004] HCA 46 Para 32

…ondon v Pompano P/L (2013) 252 CLR 38 at [122]-[126]. The principle has been applied in a number of the other decisions including the decision of Fardon v Attorney General of Qld (2004) 223 CLR 575 , cited in “ Pompano” , and the “Gypsy Jokers Motorcycle Club” decision of the High Court from 2008.…
John Fairfax Publications Pty Ltd v District Court of New South Wales
[2004] NSWCA 324 Para 10

…t the decision of the Court of Appeal overturning a judgment of my own, reported as John Fairfax Ltd v District Court of New South Wales [2004] 61 NSWLR 344, which held that my Court did not have jurisdiction or power to order the non-publication of the verdict of a trial because publication of the verdict coul…
R v WRC
[2003] NSWCCA 394 Para 13

…e. The applicant submits all these matters militate in favour of the application. Johnson J referred to Chief Justice Spigelman’s judgment in WRC [2003] NSWCCA 394, at [55]-[56], where his Honour noted that a permanent stay of proceedings can only be ordered in an ‘extreme case’.…
Nicholas v The Queen
[1998] HCA 9 Para 39

…ce where, as a consequence, the chances of an accused receiving a fair trial are seriously diminished, citing Toohey J , Nicholas v The Queen [1998] HCA 9 at [53]-[54].…
Kable v Director of Public Prosecutions (NSW)
[1996] HCA 24 Para 32

…operation of s.29 (1)(d) of the Act violates the principle referred to as the ‘Kable’ principle ( Kable v Director of Public Prosecutions [1996] 189 CLR 51). That principle is discussed in Condon v Pompano P/L (2013) 252 CLR 38 at [122]-[126]. The principle has been applied in a number of the other decisions…
Rogers v The Queen
[1994] HCA 42 Para 12

…nd that the power to order a permanent stay was exerciseable when or where “the requirement of justice demands it” (see Rogers v The Queen [1994] 181 CLR 251 at [255], per Mason CJ)…
Jago v District Court (NSW)
[1989] HCA 46 Para 11

…e “an abuse of process”. A court is duty-bound to prevent an abuse of its own processes. (See Jago v District Court of New South Wales [1989] 168 CLR 23, at [30]-[31] Mason CJ). Brennan J in the same decision noted that the principles arising from an earlier decision of Barton v The Queen [1980] 147 CLR 75 ha…
Barton v the Queen
[1980] HCA 48 Para 11

…t [30]-[31] Mason CJ). Brennan J in the same decision noted that the principles arising from an earlier decision of Barton v The Queen [1980] 147 CLR 75 had a dual purpose… “To prevent an abuse of process and the prosecution of a criminal proceeding in a manner which will result in a trial which is unfair whe…
Church of Scientology v Woodward
[1982] HCA 78 Para 49

…e required to arrive at a decision “on something less than the entirety of the relevant materials” ( Church of Scientology Inc v Woodward (1982) 154 CLR 25, at [61]: Gypsy Jokers V Commissioner of Police (2008) 234 CLR 532 at [24], [189]. These matters identified, I accept as conforming with the authority by which I…

Legislation cited in this decision · 5

Children and Young Persons (Care and Protection) Act 1998 (NSW)
1 mention (from Para 11)
Crimes Act 1900 (ACT)
1 mention (from Para 3)
Criminal Procedure Act 1986 (NSW)
1 mention (from Para 45)
Evidence Act 1995 (Cth)
1 mention (from Para 14)
Judiciary Act 1903 (Cth)
1 mention (from Para 1)

Medium Neutral Citation:	Hayward v R [2019] NSWDC 464
Hearing dates:	18,19 July 2019
Date of orders:	23 July 2019
Decision date:	23 July 2019
Before:	Norrish QC DCJ
Decision:	Decline to make the orders sought
Catchwords:	Permanent stay of proceedings: Conditional stay of proceedings: Constitutional validity of legislation
Legislation Cited:	s.29 Children and Young Persons (Care and Protection) Act 1998
Cases Cited:	Barton v The Queen [1980] 147 CLR 75 Church of Scientology Inc v Woodward (1982) 154 CLR 25 Condon v Pompano P/L (2013) 252 CLR 38 FACS v Hayward [2018] NSWCA 209 Fardon v Attorney General of Qld (2004) 223 CLR 575 Graham v Minister of Immigration [2017] 263 CLR 1 Gypsy Jokers Motorcycle Club Gypsy Jokers V Commissioner of Police (2008) 234 CLR 532 Hayward v R International Finance trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 Jago v District Court of New South Wales [1989] 168 CLR 23 John Fairfax Ltd v District Court of New South Wales [2004] 61 NSWLR 344, K Generation v Liquor Licensing Court [2009] HCA 4 Kable v Director of Public Prosecutions [1996] 189 CLR 51 KS v Veitch (No. 2) (2012) 84 NSWLR 172 Nicholas v The Queen [1998] HCA 9 R v Dupas [2010] HCA 20 R v Hayward [2018] NSWCCA 104 R v Hayward (a pseudonym) [2017] NSWSC 1170 R v McCarthy NSWCCA – unreported 12 August 1994 R v McDonald, Maitland v R [2016] NSWCCA 306 R v Morgan [1993] 30 NSWLR 543 R v Nicholas (1998) 193 CLR 170 R v PJE (NSWCCA, unreported 9 October 1995) R v Webb, [2012] NSWCCA 216 R v WRC [2003] NSWCCA 394 Re Attorney General’s Reference [2014] NSWCCA 251 Rogers v The Queen [1994] 181 CLR 251 Secretary of Department of FACS v Hayward
Category:	Procedural and other rulings
Parties:	Hayward (a pseudonym - otherwise known as AA) (Applicant) Regina (Crown) Attorney General of New South Wales (Respondent)
Representation:	Counsel: Ms S Beckett (Applicant) Mr S Hughes (Crown) Mr S Robertson (Respondent) Ms C Winnett (Respondent)
File Number(s):	2014/272919
Publication restriction:	Non publication order of the name of the applicant and the complainant