Lacey (a pseudonym) v Attorney General for New South Wales

[2021] NSWCA 27

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Lacey (a pseudonym) v Attorney General for New South Wales [2021] NSWCA 27

Hearing dates:

12 November 2020

Decision date:

10 March 2021

Before:

Basten JA at [1];
Leeming JA at [41];
McCallum JA at [51]

Decision:

(1)    Grant the applicant an extension of time for the filing and service of the notice of intention to appeal, up to and including 25 May 2020.

(2)    Grant the applicant leave to appeal with respect to grounds 1 and 2 in the draft notice of appeal and treat the draft notice of appeal, limited to those grounds, as the notice of appeal for the purposes of the proceedings.

(3)    Otherwise refuse leave to appeal.

(4)    With respect to grounds 1 and 2, dismiss the appeal.

Catchwords:

COURTS – jurisdiction – criminal jurisdiction of Children’s Court – where young person sought to have charges heard by a female magistrate and to have males excluded from court for certain evidence and from viewing that evidence – powers of the Children’s Court to deal with criminal charges against a young person

APPEALS – appeal from refusal by Children’s Court of application to have proceedings heard by a female magistrate – whether amenable to appeal to the Supreme Court under the Crimes (Appeal and Review) Act 2001 (NSW)

Legislation Cited:

Bail Act 2013 (NSW), s 18

Children (Criminal Proceedings) Act 1987 (NSW), ss 6, 7, 9, 10, 12, 15A, 27

Children’s Court Act, s 23B

Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8

Crimes Act 1900 (NSW), s 58, 195

Crimes (Appeal and Review) Act2001 (NSW), s 53

Evidence Act 1995 (NSW), ss 4, 9, 76, 78A

Federal Court of Australia Act 1976 (Cth), ss 17, 50

Local Court Act 2007 (NSW), s 28

Supreme Court Act 1970 (NSW), ss 69, 101, 101

Cases Cited:

Barton v Walker [1979] 2 NSWLR 740

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Grassby v R (1989) 168 CLR 1; [1989] HCA 45

Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46

Jango v Northern Territory of Australia [2003] FCA 1230

Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 19

O’Shane v Harbour Radio (2013) 85 NSWLR 698; [2013] NSWCA 315

R v Fisher (2003) 138 A Crim R 318; [2003] NSWCCA 41

R v Mosely (1992) 28 NSWLR 735

Rajski v Wood (1989) 18 NSWLR 512

Re Lake Torrens Overlap Proceedings (No 2) [2015] FCA 1195

Salter v Director of Public Prosecutions (NSW) (2009) 75 NSWLR 392; [2009] NSWCA 357

Western Australia v Ward (1977) 76 FCR 592

Texts Cited:

L Burton Crawford and J Boughey, “The Centrality of Jurisdictional Error: Rationale and Consequences” (2019) 30 PLR 18

Category:

Principal judgment

Parties:

Lacey (a pseudonym) (Applicant)
Attorney General for New South Wales (Respondent)

Representation:

Counsel:
C Ronalds SC, T Epstein (Applicant)
D Kell SC, J Caldwell (Respondent)

Solicitors:
Aboriginal Legal Service (Applicant)
Crown Solicitor’s Office (Respondent)

File Number(s):

2020/149995

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

Supreme Court of New south Wales

Jurisdiction:

Common Law

Citation:

[2020] NSWSC 389

Date of Decision:

09 April 2020

Before:

Wilson J

File Number(s):

2020/304946

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant is an Aboriginal teenager who faces criminal charges in the Children’s Court. She was 15 at the time she was charged. The prosecution case was said to include footage of the applicant being strip-searched at a police station following her arrest. The appellant foreshadowed relying on the same footage to establish a defence that the search was unlawful. The footage is said to include two short segments showing the applicant’s chest and buttocks. The applicant made an application calculated to prevent any male from seeing the footage, including:

1. an order that the matter be heard by a female magistrate;

2. an order that no men be present for the playing of the videotape and that it not be disclosed to men;

3. in the alternative to (1), a change of venue to a Children’s Court where a female magistrate regularly sits;

4. otherwise, that the matter be permanently stayed.

The application was supported by evidence that, in Aboriginal cultures, the showing of a woman’s sensitive parts is considered women’s business which must only be conducted in the presence of women and that, if women’s business is conducted in the presence of men, the likely result is cultural shame which would be extremely distressing and would stay with the woman for a long time. The applicant had told a Field Officer with the Aboriginal Legal Service that, if her charges could not be heard by a female magistrate, she did not want to defend the matter.

The magistrate refused the application on the basis that order (2), if made, would inappropriately constrain the ability of the prosecution properly to present its case because it would prevent male officers from commenting on the footage of the strip search during their evidence. Having reached that conclusion, his Honour concluded that it would be illogical to make the other orders sought.

The applicant sought leave to appeal under s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW). That section permits an appeal to the Supreme Court against an interlocutory order made by the Children’s Court in summary proceedings but only on a ground that involves a question of law alone and only by leave of the Supreme Court. The applicant contended that the magistrate erred in determining the application on the basis that witnesses needed to observe the footage in the course of the proceedings; in failing properly to take account of the applicant’s circumstances; in refusing to admit evidence relied upon in support of the application and in denying the applicant procedural fairness in making the decision on the basis that male police officers needed to give evidence about the video.

Although the magistrate did not determine the application on the basis that he lacked power to make any of the orders sought, the Attorney General’s response to the summons in the Supreme Court raised the question of power as a reason the primary judge would not remit the matter to the Children’s Court, even if error were established. The appeal before the primary judge proceeded on the basis that the question of power was the central issue.

The primary judge held that the magistrate’s decision concerning proposed order (1) was not an interlocutory order amenable to appeal under s 53(3)(b) of the Crimes (Appeal and Review) Act. Her Honour further held that, even if that was wrong, the magistrate had no power to make the order. As to proposed order (2) the primary judge held that the order may be an interlocutory order but that the magistrate had no power to make it. As to proposed order (3) her Honour accepted that the order was an interlocutory order amenable to appeal but held that no error of law was established.

The applicant sought leave to appeal from that decision. The key issues on appeal were: (1) whether the primary judge erred in finding that the magistrate’s refusal to make an order that the matter be heard by a female magistrate was not an interlocutory order amenable to appeal under the Crimes (Appeal and Review); and (2) whether the Children’s Court had power to make the orders sought.

The Court (Basten JA, Leeming JA and McCallum JA) dismissed the appeal and held:

(per Basten JA)

1. The question is whether the fair and proper administration of justice will be fatally compromised by conducting a hearing before a male magistrate. On a functional approach, the refusal of an application directed to avoiding that result may well involve an “interlocutory order” for the purposes of s 53(3)(b) of the Crimes (Appeal and Review) Act. Whether it did in the present case requires identification of the particular order sought and erroneously refused: [20].

2. the Children’s Court has power, in a proper case, to make an order that charges be heard by a female (or male) magistrate: at [25]-[26].

(per Leeming JA and McCallum JA)

1. the appropriate characterisation of the application in the Children’s Court is that it was an application for a conditional permanent stay. An order refusing such an application is an interlocutory order for the purposes of s 53(3)(b) of the Crimes (Appeal and Review) Act: per Leeming JA at [43]-[45]; per McCallum JA at [82]-[84].

2. The Local Court (and so the Children’s Court) has power, in an appropriate case, to order that a prosecution be stayed conditionally: per Leeming JA at [45]; per McCallum JA at [82].

3. Such a stay might include conditions to the effect of “orders” 1 and 2 sought by the applicant in an exceptional case: per Leeming JA at [45].

4. Such a stay might include a condition that the matter be heard by a female magistrate provided such a condition was necessary for the effective exercise of the court’s statutory powers: per McCallum JA at [117]-[119].

(per Basten JA, Leeming JA agreeing)

1. the Children’s Court has power to make an order of the kind sought prohibiting viewing of the video footage by men, although closer attention might have been directed to the precise terms of the proposed order, and the basis upon which it was sought. Section 8(1)(e) of the Court Suppression and Non-publication Orders Act 2010 (NSW) could, in circumstances involving cultural issues of the kind raised in the present case, operate to extend the effect of par (d) to proceedings involving matters other than offences of a sexual nature: per Basten JA at [29], [31]; Leeming JA agreeing at [41].

(per McCallum JA)

1. Section 10 of the Children (Criminal Proceedings) Act confers power to exclude any male during the hearing including any male police officer other than during his evidence. Section 7 of the Court Suppression and Non-Publication Orders Act confers power to prohibit the publication of the video on any of the grounds in s 8, of which grounds 8(1)(a) and (e) would be relevant here: at [85].

(per Basten JA and Leeming JA and McCallum JA)

1. Although error was identified in aspects of the reasoning of the primary judge, those errors did not affect the dispositive reasoning of the magistrate and accordingly the appeal should be dismissed: per Basten JA at [36]; Leeming JA agreeing at [41]; McCallum JA agreeing at [120].

Judgment

1. BASTEN JA: This application for leave to appeal turns on the powers of the Children’s Court to deal with criminal charges against a young person, and the existence of a right of appeal from the refusal of an administrative direction sought by the applicant as to the composition of the court hearing her case.

Background

2. In March 2019, the applicant, then a 15 year old Indigenous girl, was charged (relevantly) with four offences of assault an officer in the execution of his or her duty, pursuant to s 58 of the Crimes Act 1900 (NSW), and one charge of destroying or damaging property, pursuant to s 195(1)(a) of the Crimes Act. The subject matter of the latter charge was two body cameras worn by police officers who were the victims of the assaults. The charges were laid by way of court attendance notice and were listed before the Wagga Wagga Children’s Court for a date in April 2019.

3. The charges have not yet been heard (although they are now listed for April 2021) because the applicant has taken steps to have the proceedings conducted by a female prosecutor, before a female magistrate (if necessary, by a change of venue) and for an order preventing any male person viewing video footage of the offending conduct which occurred in the police station. The reason for such orders is that the video footage taken in the police station apparently contains images of the applicant’s bare buttocks and chest, whilst being searched following her arrest. Allowing male persons to view the video would, she claims, be humiliating, breach cultural norms accepted by her people and would exacerbate the invasion of her privacy. She contends the search was illegal.

4. A magistrate sitting in the Children’s Court declined to make such orders. The applicant sought leave to appeal to a judge in the Common Law Division. The applicant also sought to challenge the magistrate’s decision by way of review in the Court’s supervisory jurisdiction. By a comprehensive judgment delivered with commendable expedition on 9 April 2020, eight days after the hearing, Wilson J granted leave to appeal from the refusal to order a change of venue, but dismissed the appeal. She otherwise dismissed the summons by which the proceedings before her were initiated. [1]

   1. TR v Constable Cox [2020] NSWSC 389.

5. The applicant now seeks to appeal from the orders and judgment in the Division, pursuant to s 101 of the Supreme Court Act 1970 (NSW). Leave is required in so far as the judgment in the Division constituted an appeal under Pt 5 (s 53) of the Crimes (Appeal and Review) Act 2001 (NSW) (“Appeal and Review Act”): Supreme Court Act, s 101(2)(h). To the extent that the applicant also relied in the Division on the supervisory jurisdiction of the Court, as reflected in s 69 of the Supreme Court Act, leave was required because, although the dismissal of the summons was a final judgment, it was not an appeal involving a matter valued at more than $100,000: s 101(2)(r). Finally, the appeal was commenced out of time: an extension of time, not opposed by the Attorney, should be granted.

6. Before turning to the legal issues sought to be raised in this Court, it is appropriate to note the final observations of Wilson J, following the formal dismissal of the proceedings before her:

“[135]   There is a ‘need for recognition of the importance of cultural and gender-based adjustments’ in dealing with matters before the courts, as the plaintiff submitted. However, those considerations are secondary to the public interest in the proper administration of justice. The significant public interest in the resolution of criminal proceedings will frequently outweigh and qualify the protection of an individual’s interests in maintaining a cultural tradition, privacy, and even modesty. That is the case in many criminal matters. An example is in the determination of sexual assault allegations, where both the complainant and the accused person may have to give detailed evidence about very personal and intimate matters, and even endure the humiliation in some circumstances of having photographs or footage of their bodies displayed in a courtroom.

[136]   Here, the Magistrate urged the parties to a practical resolution of the issues, a resolution that, with good will, should readily be able to be reached. Since the question of the legality of the strip search of [the applicant’s] person is founded by what took place prior to the commencement of the search, there should be no need for the few seconds of sensitive footage to be shown in court, as his Honour observed. If there is a need, it should be possible to pix[e]late or otherwise obscure the images of [the applicant’s] torso.

[137]   The prosecutor was prepared to ensure that, as a matter of rostering, a female police prosecutor would have the conduct of the hearing before the Children’s Court. His Honour told the parties that female court staff would be allocated to the courtroom. Since the matter will now have to be listed for hearing (subject to the COVID-19 procedures adopted in the Children’s Court) it may be that the matter can be listed when a female magistrate is sitting at Wagga Wagga.

[138]   In this practical way, a balance can be struck between the need for a criminal case to be heard, and the need to address [the applicant’s] understandable distress at the prospect of men seeing sensitive footage of her.”

Similarly practical suggestions were made by the magistrate.

Limited grant of leave

7. The applicant sought to rely on four grounds of appeal, namely findings that:

1. the decision of the Children’s Court was not an “interlocutory order” from which an appeal lay;

2. the magistrate lacked power to make the orders sought by the applicant;

3. the magistrate admitted the evidence from an Aboriginal Legal Service field officer and from the applicant’s mother; and

4. a claim of procedural unfairness should be rejected.

8. Leave to appeal should be granted, but on a restricted basis. Indeed, the oral submissions in this Court effectively acknowledged as much. Ground 3 alleged error on the part of the primary judge in finding that the magistrate “implicitly admitted the evidence” of two witnesses, being an affidavit from the mother of the applicant and an affidavit from a field officer with the Aboriginal Legal Service in Wagga Wagga. The alleged error was the rejection of the evidence by the magistrate. Whether the evidence was in fact rejected, or given limited weight, is not an issue of substance. The evidence was not expressly rejected. Although the Evidence Act 1995 (NSW) applies to interlocutory proceedings (s 4(1)(b)) a general law principle permitting the court to dispense with the rules of evidence in interlocutory proceedings is preserved (s 9(2)(c)). It is not unusual for evidence which is arguably inadmissible to be adduced without objection on interlocutory proceedings and without cross-examination. The better view may be that this happened in the present case, but the evidence was given limited weight.

9. The lack of certainty as to how the evidence was viewed may be illustrated by the magistrate’s observations with respect to an affidavit of Ms Bruton, a field officer with the Aboriginal Legal Service: [2]

“… I can understand how reliance can be had on what Ms Bruton says about the Aboriginal culture ….

Certainly the first of the observations about what is women’s business and that it must only be conducted in the [absence] of men, I can understand that, that is admissible under s 78A. I have concerns as to the opinions that are thereafter expressed because the deponent is not an anthropologist, is not a psychologist, it would seem is not a person who is an expert to provide the evidence that they do, with respect to the person being reluctant to talk or answer questions and their body language being affected.”

2. Tcpt, 10/09/19, p 12(8).

10. Ms Bruton’s evidence was that she was a Mutthi Mutthi and Wemba Wemba woman and was raised in Aboriginal culture. Section 78A of the Evidence Act states that the opinion rule does not apply to evidence given by an Indigenous person about the existence or content of traditional laws and customs. (It may be that evidence from an Indigenous woman brought up in her traditional culture, as to that culture, is not subject to the exclusionary rule regarding opinion evidence under the Evidence Act, s 76.) In principle, no narrow meaning should be given to the operation of s 78A. However, it is clear that the magistrate was alert to such matters and this interlocutory application provides no vehicle for their exploration, in circumstances where they were not dispositive.

11. Ground 4 alleged that there was procedural unfairness because the magistrate had determined the matter on a factual basis which had not been addressed by the parties. The factual basis was the need for the prosecutor to have an opportunity to show the whole of the CCTV recording to male officers who were likely to be called to give evidence.

12. The magistrate may have been wrong to assume that such a step would be necessary, but the order sought was that “no men be present for the playing of the video tape of the search; and that it not be disclosed to any men.” The proposed order invited attention to the circumstances in which it might be disclosed to male viewers. The proposed order was directed to the prosecution and defence of the charges in the Local Court. It clearly envisaged two circumstances, namely the preparation for the hearing and the hearing. There was no unfairness in the magistrate seeking to draw appropriate inferences as to how the material might be deployed in those situations. The applicant, having sought the order, cannot complain that she had no opportunity to address the consequences of the proposed order. There was no reasonably arguable case of procedural unfairness.

10. Leave should be refused with respect to grounds 3 and 4.

Ground 1: availability of appeal to Supreme Court

14. Wilson J dismissed the appeal from the Local Court on the basis that, except with respect to the refusal to order a change of venue, there was no appeal available. That finding turned on the application of s 53 of the Appeal and Review Act, which, relevantly, provides:

53   Appeals requiring leave

…

(3)   Any person against whom—

…

(b)   an interlocutory order has been made by the Local Court in relation to the person in summary proceedings,

may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court.

15. Provisions permitting interlocutory appeals commonly give rise to difficulties in defining the limits of the power conferred. As observed by Spigelman CJ in Salter v Director of Public Prosecutions (NSW),[3] it is “plainly undesirable to fragment committal or summary proceedings by interlocutory appeals.” Accordingly, the term “interlocutory order” in s 53(3)(b) was distinguished from “interlocutory decision”, the latter being seen as a broader category of judicial acts. Concluding that the narrower reading was necessary to avoid fragmentation, the Chief Justice noted that “the leave requirement would not, of itself, serve that purpose because of the possible disruption occasioned by applications for leave.” [4] However, as Salter itself and this case demonstrate, the distinction is unlikely to have a sufficient chilling effect to avoid applications for leave to appeal, followed in some cases by further appeals following rejection by a single judge.

    3. (2009) 75 NSWLR 392; [2009] NSWCA 357 at [16], [24].

    4. Salter at [24].

16. In both civil and criminal jurisdictions, statutory provisions permitting interlocutory appeals are commonplace. [5] They are generally accompanied by a requirement for leave, though not always. [6] The absence of provision for an interlocutory appeal leaves open the availability of proceedings by way of review in the supervisory jurisdiction of the Court, which is also attended by some uncertainty as to the scope of its operation. Further, that jurisdiction being treated as civil, rather than criminal, may mean that a challenge to an interlocutory order in criminal proceedings is dealt with on the civil side of the Court.

    5. See Criminal Appeal Act 1912 (NSW), s 5F; Supreme Court Act, s 101(1)(a) and (2)(e).

    6. See Criminal Appeal Act, s 5F(2).

17. The semantic distinction between “order” and “decision” provides little by way of increased certainty. It is necessary, though by no means easy, to identify a functional element which is essential for an “order”. In Salter, reliance was placed on the decision of this Court in Barton v Walker,[7] holding that a refusal by a judge of a recusal application did not constitute an “order” from which an appeal lay. That decision has been overruled by the High Court and is no longer followed. [8] The potential anomalies attending semantic distinctions may arise from the degree of procedural formality adopted in a particular case. For example, a refusal of an application made orally in court might be treated as an interlocutory decision; however, if the application were made by notice of motion, disposed of by dismissing the notice of motion, arguably there would be an interlocutory order. Similarly, where the hearing of an application is dealt with separately from other matters, a refusal may be accompanied by a costs order.

    7. [1979] 2 NSWLR 740 at 747D (Samuels JA); Salter at [11].

    8. Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [82]; Polsen v Harrison [2021] NSWCA 23 at [40]-[42].

18. By contrast, a functional approach would ask whether the direction had consequences as to how the matter might proceed. Thus, a direction that the matter be listed before a particular judicial officer, or one of a class of judicial officers (in this case a female magistrate), does not require the parties to take any steps: rather, it is an administrative directive that can only operate within the court. Directions dealing with the transaction of the business of the court are described in s 39 of the Supreme Court Act as “intra-curial arrangements”. As noted in Rajski v Wood [9] such arrangements long preceded the 1970 Supreme Court Act. Whether the internal arrangements of a court are usefully described as part of its “inherent jurisdiction”, as in Rajski v Wood, [10] may be doubted: that language is apt to indicate the exercise of judicial, rather than administrative power. Further, Rajski v Wood involved an attempt to achieve by other means a challenge to a refusal by a judge to disqualify himself, at a time when Barton v Walker precluded a direct challenge to such a decision. Nor should it be doubted that all courts and tribunals, not merely the superior courts of record referred to in Rajski v Wood, have the necessary implied powers to make arrangements for the proper dispatch of their business.

    9. (1989) 18 NSWLR 512 at 519-520 (Kirby P), 523D (Priestley JA), 525-526 (Hope AJA).

    10. Rajski v Wood at 526A.

19. Nevertheless, some intra-curial arrangements may give rise to challenges, for example where there has been procedural unfairness. It remains necessary to identify the bases upon which such arrangements can be challenged. A reasonable apprehension of bias on the part of a judicial officer allocated to hear a matter is one such basis. As identified in Ebner v Official Trustee in Bankruptcy [11] and reiterated in Michael Wilson,[12] “the apprehension of bias principle has its roots in principles fundamental to the common law system of adversarial trial.” A challenge based on actual bias or a reasonable apprehension of bias is a challenge to the competency of the tribunal, constituted by the particular judicial officer. A preliminary refusal of a recusal application, if not challengeable, would mean that a trial may be conducted on a false basis which, when revealed on appeal against a final order, will require that the outcome be set aside and a retrial undertaken. An interlocutory appeal may be preferable, despite the potential to fragment or delay the criminal process.

    11. (2000) 205 CLR 337; [2000] HCA 63 at [3]-[7].

    12. Michael Wilson at [83].

20. The question in the present case is whether the fair and proper administration of justice will be fatally compromised by conducting a hearing before a male magistrate. On a functional approach, the refusal of an application directed to avoiding that result may well involve an “interlocutory order”. Whether it did in the present case requires identification of the particular order sought and erroneously refused.

Ground 2: power to order that charges to be heard by a female magistrate

21. If the magistrate had determined that he had no power to direct that the charges be heard by a female magistrate, it could have been argued that the application had not been addressed in its terms. If such a power existed, that approach would have involved an error of law. However, that is not what happened in the Children’s Court.

22. Rather, the magistrate dealt first with the question as to whether he should grant order (2), namely that “no men be present for the playing of the video tape of the search and that it not be disclosed to any men.” The magistrate thought, rightly or wrongly, that the prosecution of the charges required that male witnesses would need to view the tape. His conclusion was expressed as follows: [13]

“In my view to grant order 2 is to inappropriately … restrain the way that the prosecution presents what are serious allegations before the Court. I am mindful of the fact that the counter allegation, put by way of defence, is that these searches were illegal and that there is a significant public policy interest in those matters being ventilated and if I do not grant this application, then they may not be ventilated. In balancing the various interests, I am not willing to constrain the way the prosecution presents this case. Given that five of the witnesses being cross-examined are men, I cannot see any way that the video not be played.”

13. Tcpt, p 12(45).

23. The magistrate then proceeded to deal with practical arrangements which might be available to avoid this becoming an issue, in similar terms to those outlined by Wilson J in the passages set out above. [14] The magistrate then proceeded to deal with order (1): [15]

“Having not granted the order in condition 2, then there is no logical reason why I would grant the order condition 1 that the matter be heard by a female magistrate, because I have already indicated there will, in my view, of necessity be men who are present for the playing of at least some of the video.”

That reasoning and conclusion did not involve any denial of power, but rather the exercise of a discretionary judgment.

14. See [6].

15. Tcpt, p 13(10).

24. The primary judge disposed of this issue on a different basis, concluding:

“[98]   As to the Children’s Court’s implied power, and bearing in mind that the court derives its jurisdiction from statute, I am very doubtful that there is any implied power that would permit one magistrate to order another magistrate to hear a particular case. There is a statutory power for the Chief Magistrate to give directions as to the work of magistrates …, but that provision did not apply to Magistrate Halburd ….”

[99] I am not persuaded that in refusing to grant the plaintiff’s application, for a female Magistrate to hear her trial, his Honour was making an interlocutory order that is amenable to the jurisdiction conferred on this Court pursuant to s 53(3)(b). If I am wrong in that decision, I have concluded that his Honour had no power to grant the application, and thus there could be no error of law in his refusal to do so.”

25. As a matter of principle, it was arguable that the magistrate did have power to make the order sought; in any event, he did not reject the application on the basis that he lacked power. This was not a case in which the magistrate was being invited to order any other magistrate to hear the particular case: rather, he was invited to order that the case only be heard by a female magistrate, a category which the evidence showed covered some 47% of the magistracy in this State. Furthermore, if there had been a problem with any magistrate in the State sitting, a problem which can arise in high profile cases heard by courts with fewer judicial officers than the Local Court, it might be necessary to have a person appointed for the particular case. This was not such a case.

26. Although the judge was wrong to conclude that the magistrate could not, in a proper case, have made the order sought, the error did not affect the outcome, unless the discretionary decision of the magistrate revealed some other error of law; that depended on how he had dealt (first) with the second issue.

Ground 2: power to order that video footage not to be viewed by men

27. The second issue concerned the refusal of the magistrate to make an order prohibiting viewing of the video footage by men, generally. The judge was said [16] to have rejected the challenge to the magistrate’s failure to make the order sought on a legally erroneous basis, namely that the magistrate had no power to make such an order.

    16. Draft notice of appeal, ground 4.

28. The primary judge did conclude that there was no express statutory power, including under the Children (Criminal Proceedings) Act 1987 (NSW), s 10, [17] or under the Court Suppression and Non-publication Orders Act 2010 (NSW) (“Suppression Orders Act”), ss 7 and 8. [18] The primary judge disposed of the matter as follows:

“[114]   Whilst an order in the terms sought by the applicant in this regard may be an ‘interlocutory order’, the Children’s Court had no power to make it. There can be no error in declining to make an order without power.”

17. Primary judgment at [102]-[105].

18. Primary judgment at [106]-[112].

29. I do not agree that the magistrate had no power to make an order of the kind sought, although closer attention might have been directed to the precise terms of the proposed order, and the basis upon which it was sought. In fact the order had two limbs. The first concerned viewing the video by male police officers who may have been involved in the conduct leading up to the charges and who are likely to be required to give evidence. The second limb concerned disclosure to any male, presumably meaning disclosure to members of the public, including male police officers not involved in the proceedings.

30. In various ways, orders of the first kind are made routinely: an example is a direction that non-party witnesses be excluded from the court room prior to giving evidence. Further, the Suppression Orders Act defines “court” to include the Children’s Court: s 3. It confers power in the following terms:

7   Power to make orders

A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of—

(a)   information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or

(b)   information that comprises evidence, or information about evidence, given in proceedings before the court.

Such orders may be made on any of the following grounds:

8   Grounds for making an order

(1)   A court may make a suppression order or non-publication order on one or more of the following grounds—

(a)   the order is necessary to prevent prejudice to the proper administration of justice,

(b)   the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c)   the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including sexual touching or a sexual act within the meaning of Division 10 of Part 3 of the Crimes Act 1900),

(e)   it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

31. I see no reason why the “otherwise necessary” requirement in s 8(e) could not, in circumstances involving cultural issues of the kind raised in the present case, operate to extend the effect of par (d) to proceedings involving matters other than offences of a sexual nature. It is true, as the primary judge noted, that the refusal of the magistrate to prohibit later disclosure (that is, after the hearing) “was not a refusal to make an order under [the Suppression Orders Act].” [19] However, the issue was whether the magistrate should have considered making an order under the Suppression Orders Act. The fact that he did not was probably because the issue was never adequately articulated and the Suppression Orders Act was not relied upon before him. Indeed, it may not have occurred to the applicant or her legal advisers at that stage that any member of the public, or police officer not involved in the proceedings, would later seek access to the video footage. However, the fact that such an application might yet be made requires the observation that nothing said in the primary judgement should be thought to preclude such an application being made upon appropriate grounds.

    19. Primary judgment at [112].

32. Apart from the passage set out above, the magistrate’s reasoning with respect to this proposed order included the following statement: [20]

“It seems to me, I could not make an order that the video not be disclosed to any men. The bigger problem and the realistic problem for this Children’s Court is that I am told that five of the witnesses who are required for cross-examination are male. It seems to me that it would be entirely inappropriate to constrain the ability of the prosecution to properly present its case, by preventing those officers from commenting on video tape of what, as I understand it, it is alleged that they were present for. I note that these are not minor assaults that are alleged.”

20. Tcpt, p 11(18).

33. Although the extract commences “I could not make an order”, it is clear that the magistrate was addressing the matter as one of discretion. The offending material had been described by the magistrate in the following terms: [21]

“The CCTV footage is said to depict, at the Wagga Police Station, two strip searches of the young person and accordingly, the argument will be that the officers were not in the execution of their duty and therefore, the young person could not be guilty of the offence alleged. Relevantly, for the purposes of this application, it is on recording one at 36 minutes and 58 seconds, a fully exposed bra and chest region.

On recording two at eight minutes and seven seconds, a fully exposed bare backside. It seems that the problem really is those exposures, if I can put it that way. As I said – and I reiterated today – it seems to me that a fairly straightforward and [simple] way for this matter to be disposed of very quickly, is simply for those two very short segments, not to be played, prosecution seem to be content with that. There does not seem to be any dispute as to what is shown at that point. Ms Winn’s [the applicant’s representative] instructions are, even if that were the case, to proceed with the application and I deal with it on that basis.”

21. Tcpt, p 10(15).

34. The application was rejected on the basis of discretionary considerations. Given the conclusion that the prosecution agreed not to play the offending segments, the only issue appears to have been whether witnesses to the event (probably not all five of the male officers referred to by the magistrate) should be precluded from viewing small parts of the footage prior to giving their evidence. Then there was a question as to whether the defence might wish to play the whole of the footage (including the brief offending sections) in court, presumably in cross-examining the female officers, rather than the male officers.

35. Whether the various factual assumptions made by the magistrate were correct is not known to this Court. It is, however, clear that practical steps of the kind proposed by the magistrate (and reiterated by the primary judge) are likely to resolve issues relating to the offending material, without affronting the cultural or personal sensitivities of the applicant. Be that as it may, there was no legal error identified in the exercise of discretion by the magistrate.

Conclusions

36. In these circumstances, leave to appeal should be refused with respect to grounds 3 and 4, for the reasons noted above. With respect to grounds 1 and 2, leave should be granted as error has been identified in aspects of the reasoning of the primary judge. On the other hand, those errors did not affect the dispositive reasoning of the magistrate and accordingly the appeal should be dismissed.

37. It has not been necessary, in order to dispose of this matter, to determine whether there was “an interlocutory order” made by the Children’s Court in relation to the applicant. If the magistrate, had determined that the proper disposition of the case required a particular order, but had refused the application for the order on the ground that he had no power to make it, there would be much to be said for the conclusion that an appeal lay. However, that was not this case.

38. There is also much to be said for the view that, like the concept of jurisdictional error, the scope of which turns on matters of statutory construction, it is undesirable to attempt a rigid taxonomy of decisions which may or may not constitute interlocutory orders. [22] The relevant control mechanism is found in the requirement that the appeal must involve “a question of law alone”, combined with the leave requirement. Suffice it to say that the grounds pursued in this Court did not satisfy that criterion.

    22. L Burton Crawford and J Boughey, “The Centrality of Jurisdictional Error: Rationale and Consequences” (2019) 30 PLR 18 at 22.

36. Although the appeal is brought in the civil jurisdiction of the Court, with the Attorney acting as the proper contradictor, the matter is ultimately one concerning a criminal proceeding in the Children’s Court. Accordingly, there should be no order as to the costs of the proceedings in this Court.

Orders

40. The Court should make the following orders:

1. Grant the applicant an extension of time for the filing and service of the notice of intention to appeal, up to and including 25 May 2020.

2. Grant the applicant leave to appeal with respect to grounds 1 and 2 in the draft notice of appeal and treat the draft notice of appeal, limited to those grounds, as the notice of appeal for the purposes of the proceedings.

3. Otherwise refuse leave to appeal.

4. With respect to grounds 1 and 2, dismiss the appeal.

41. LEEMING JA: I agree with the orders proposed by Basten JA, and with what his Honour has said concerning grounds 2, 3 and 4. I prefer to express my own reasons concerning this Court’s jurisdiction and ground 1. I shall not repeat the background contained in his Honour’s reasons.

42. The starting point for legal analysis is the order made by the Magistrate and the application before the Children’s Court. The order made was “defence application refused”, referring to an amended application framed as follows:

“1.    An order that the matter be heard by a Female Magistrate.

2.    An order that no men be present for the playing of the video tape of the search; and that it not be disclosed to any men.

3.    In the alternative to 1, a change of venue for the hearing to a Children’s Court sitting where a female Magistrate regularly sits.

4.    Otherwise that the matter be permanently stayed.”

43. Little attention has hitherto been given to the juristic nature of the application made. It is clear enough that while styled in terms of both mandatory (orders 1 and 3) and prohibitory (order 2) injunctions, that is not the nature of the application. The subject matter of “orders” 1, 2 and 3 is the procedural and administrative arrangements of the Children’s Court concerning how it is to be constituted and how it is to conduct a particular hearing. That, coupled with the conditionality of proposed “order” 4 illuminates the true nature of the application, which was a conditional permanent stay. In substance, what was sought was that the summary trial of charges 2-6 and the imposition of sentence for count 1 would only take place before the Children’s Court constituted by a female Magistrate, or at a place where a female Magistrate regularly sat, in default of which the proceeding would be stayed, all subject to a further proviso as to the way in which one aspect of the evidence relied on by the Crown would be adduced. In addition, orders were sought in relation to the non-publication of the video recordings, as to which I agree with what Basten JA has said concerning the Court Suppression and Non-publication Orders Act 2010 (NSW).

44. This way of characterising the substance of the orders as a conditional stay was raised during the hearing. Ms Ronalds SC embraced it (while candidly disavowing at the outset of her submissions any idea that it was for litigants to determine the composition of the court). The Attorney, who intervened in order that there be a contradictor, acknowledged that such a characterisation was open. In my view, it is an available and appropriate characterisation of the application in the Children’s Court.

45. An order refusing an application for a permanent stay (whether conditional or unconditional) is unquestionably an interlocutory order for the purposes of s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW). The Local Court has power, in an appropriate case, to order that a prosecution be stayed conditionally. I would not wish to exclude the possibility, in an exceptional case, of conditions to the effect of “orders” 1 and 2 being imposed, although I do not express a view of whether that would be available, let alone appropriate, in the present case.

46. It follows from the above that I respectfully differ from the primary judge in relation to the analysis of the power of the Children’s Court. It should be emphasised that both parties had submitted that that was a central issue arising on the summons, and neither side sought to characterise the application in the way indicated above. No criticism should be made of the primary judge for approaching the summons in the way that her Honour did. In particular, I agree with the good sense of her Honour’s views at [135]-[138] to which Basten JA has drawn attention. Those matters illustrate the fact that while the power to grant a conditional stay exists, its exercise is apt to be confined to exceptional cases.

47. On a fair reading of the reasons of the Magistrate, the application was not refused on the basis of an absence of power, but rather because he proceeded on the basis that five male police officers were required by the defence for cross-examination and it would be necessary to play the video recordings before them. In this Court, the position was clearer. Although the video recordings were not in evidence in this Court or before the primary judge, it was common ground that the charges of assault arising out of the “strip search” were principally based on assaults said to have been committed by the appellant upon female police officers.

48. The term “strip search” is defined inclusively in s 3 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) to extend to a search “requiring the person to remove all of his or her clothes”; such a search is authorised by s 31 of that Act. It is to be contrasted with a “frisk search”, a term formerly defined in s 3 to mean, relevantly, “a search of a person conducted by quickly running the hands over the person’s outer clothing”. The point of drawing the distinction is that a search which goes beyond a frisk search may be a “strip search” as defined by statute, even if it falls short of requiring the person to remove all of his or her clothes. That is not to deny the intrusiveness of either form of search. However, while the evidence available on this appeal does not enable a definitive conclusion to be drawn, it may very well be that what the police did was to conduct a “strip search” falling within the inclusive legal definition, albeit one which did not involve the removal of all of the appellant’s clothing.

49. It was also clearer in this Court than it may have been before the Magistrate, running a very busy list and sitting well into the evening, that only two small sections of the video gave rise to concern on the part of the appellant. There are undoubtedly ways in which that concern can be addressed (perhaps by not playing those parts of the tape, or agreeing on what is found in those parts of the tape, or pixelating parts of the images in those parts of the tape). The Crown had already indicated that a female prosecutor had been allocated for this hearing.

50. I mention these factual matters because it remains open to the parties to make further application as to what steps may be appropriate for the conduct of the hearing.

51. McCALLUM JA: The applicant is an Aboriginal teenager who faces criminal charges in the Children’s Court. She was 15 at the time of the events giving rise to the charges. For reasons I will explain, the prosecution case includes footage of the applicant being forcibly strip-searched whilst in custody at Wagga Wagga Police Station. The applicant may also wish to rely on the same footage to support her defence that the search was unlawful. The footage is said to include two short segments showing the applicant’s chest and buttocks.

52. The applicant is naturally distressed at the prospect of the footage being seen by any male person. More significantly for present purposes, there is evidence that, in Aboriginal cultures, the showing of a woman’s sensitive parts is considered women’s business; that women’s business must only be conducted in the presence of women, never to be observed by males; and that the division of men’s and women’s business is lore to Aboriginal people that has been practised for thousands of years. The question sought to be raised by this appeal is whether the Children’s Court, established by statute in 1987, has power to ensure that the hearing of the charges is conducted in such a way as to prevent the footage from being seen by any male, even a male magistrate.

53. The appeal requires leave because it is brought from an order of the Supreme Court in the Common Law Division on an appeal under Part 5 of the Crimes (Appeal and Review) Act 2001 (NSW). The requirement for leave from such an appeal is imposed by s 101(2)(h) of the Supreme Court Act 1970 (NSW) (the definition of “Local Court” in s 3 of the Crimes (Appeal and Review) Act 2001 includes the Children’s Court).

Circumstances giving rise to the charges

54. The applicant was arrested for taking and driving a conveyance without the consent of the owner. The prosecution case is that the owner of the car misplaced his keys and that the applicant found them and took the car to drive to the house where she was later arrested. An obvious focus of the police investigation was to find the keys.

55. After the applicant had been arrested and taken back to Wagga Wagga police station, police attempted to search her. She is described in the police fact sheet as having been “combative and uncooperative”. Police allege that, during the search, she spat at a female police officer (she was later charged with assaulting that officer). The search could not be completed. The fact sheet states that, after the initial unsuccessful search and while the applicant was standing in the “dock” at the police station while the charges were being processed, she was seen “dangling” a set of keys which police allege included the key to the stolen car. The fact sheet states that she “continued to pull out items from underneath her clothing and made threats to use the items either for self-harm or harm of others.” Police formed the suspicion that she was “in possession of more items in relation to the incident” and decided to conduct a strip search. The strip search was carried out by female police officers in the presence of the applicant’s support person (a female).

56. The fact sheet makes no reference to there having been any male present during the search. However, the Court was informed at the hearing of the appeal that the video footage shows there were three officers present, two females and one male. It was said that the female officers conducted the search while the male officer stood behind them. Police allege that, during the strip search, the applicant kicked the two female officers multiple times and smashed the body camera worn by one of them.

Charges

57. In addition to the charge of taking and driving a conveyance, the applicant was ultimately charged with four offences of assaulting an officer while in the execution of his or her duty contrary to s 58 of the Crimes Act 1900 (NSW) and one charge of destroying property. The first assault charge arose from the circumstances of the applicant’s arrest at a house in Wagga Wagga. The second was the spitting incident which was unrelated to the strip search. The third and fourth charges arose from the kicking of the two female police officers during the strip search. The charge of destroying property relates to the destruction of two body worn cameras in two separate incidents. It is not clear from the information provided in the police fact sheet why any male witness, or indeed any witness, would need to be present in court while the video of the strip search was played.

Application in the Children’s Court

58. About a month before the date fixed for the hearing of the charges in the Children’s Court at Wagga Wagga, the applicant made an application for the following orders:

1. An order that the matter be heard by a female magistrate.

2. An order that no men be present for the playing of the videotape of the search; and that it not be disclosed to any men.

3. In the alternative to (1), a change of venue for the hearing to a Children’s Court where a female magistrate regularly sits.

4. Otherwise that the matter be permanently stayed.

59. The application was supported by an affidavit from a Field Officer employed by the Aboriginal Legal Service. She was a Mutthi Mutthi and Wemba Wemba woman raised in Aboriginal culture. I have already outlined the substance of her evidence that, in Aboriginal cultures, the showing of a woman’s sensitive body parts (which include the chest and backside) is considered women’s business. The Field Officer said that, if women’s business is conducted in front of males, the likely result is cultural shame which would be extremely distressing and would stay with the woman for a long time. She also stated that she had spoken to the applicant who had said she was extremely uncomfortable with the idea of a male looking at the images of her body. The applicant told the Field Officer that, if her charges could not be heard by a female magistrate, she did not want to defend the matter.

60. The application was also supported by an affidavit sworn by the applicant’s mother who stated that the applicant had been “really upset” about being strip-searched, particularly as it happened in the presence of “men”. I note that, according to the information available to this Court, it appears there was only one male officer present in the room when the strip search took place but the point remains. The mother further stated that the applicant had previously had “issues with sexual assault” which she had attempted to report to police but that police had told her to go home. The mother stated that, following that incident, the applicant “doesn’t trust the police”.

61. Before turning to the magistrate’s decision, it is appropriate to record that his Honour was clearly working under considerable pressures of resources and time. On the day the application came before the Court, the magistrate did not reach it until ten to six in the evening. When it was indicated that the application was to proceed, his Honour took a short break because he said it had been “a very long day”. He embarked upon the hearing after the break but ultimately had to adjourn it part-heard for the parties to obtain instructions. When the hearing resumed on a later date, the applicant relied on an amended application which the magistrate does not appear to have seen in advance. That was the application that sought the novel orders set out above. The applicant had been in custody for six months at that stage, having been refused bail at the time of her arrest (she was later granted bail). His Honour accordingly addressed the application immediately and efficiently, as was appropriate in the circumstances.

62. The magistrate refused the application. His reasons for doing so, with respect, mistook the implications of the second order sought (that the video not be disclosed to any men). His Honour noted that five of the prosecution witnesses who had been required for cross-examination were men. That evidently led his Honour to believe that all five of those men were present during the strip search and would be required to view the video for the purpose of giving evidence. On the strength of that misapprehension, his Honour concluded:

“It seems to me that it would be entirely inappropriate to constrain the ability of the prosecution to properly present its case, by preventing those officers from commenting on video tape of what, as I understand, it is alleged that they were present for.”

63. As already noted, the information before this Court is that the officers who conducted the strip search were both women; that those two women are the victims of the two alleged assaults arising out of the strip search and that there was only one male present during that time. Even as to the one male witness, it is difficult to see how it would be permissible for him to “comment on” the video tape while it was being played to the court.

64. In any event, the magistrate concluded that it would not be appropriate to grant order (2) for that reason. Having reached that conclusion, his Honour concluded that there was “no logical reason” to grant order (1) (that the matter be heard by a female magistrate) because there would, of necessity, be men present in court during the hearing for the playing of at least part of the video. For the same reason, his Honour refused order (3) seeking a change of venue to a court where a female magistrate regularly sits, considering that there was no logical reason to make that order either, given his Honour’s determination in respect of order (2).

65. As to order (4), the magistrate accepted that the court had power to grant a permanent stay but declined to exercise that power. The single order made by his Honour was “the applications are refused”.

Appeal to the Supreme Court

66. The applicant appealed to the Supreme Court invoking the Court’s jurisdiction under the s 53(3) of the Crimes (Appeal and Review) Act 2001 (NSW) and alternatively the power under s 69 of the Supreme Court Act 1970 (NSW) to make orders in the nature of prerogative writs.

67. The summons sought leave “to the extent necessary” to appeal an interlocutory decision to the Supreme Court under s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW). Section 53(3) provides:

53   Appeals requiring leave

…

(3)   Any person against whom –

(a)   an order has been made by a Magistrate in relation to the person in any committal proceedings, or

(b)   an interlocutory order has been made by the Local Court in relation to the person in summary proceedings,

may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court.

68. The summons contended that the magistrate erred in determining the application on the basis that witnesses needed to observe the footage in the course of the proceedings; that his Honour erred in failing to properly take account of the applicant’s circumstances; that he erred in refusing to admit evidence relied upon in support of the application and that he denied the applicant procedural fairness in making the decision on the basis that male police officers needed to give evidence about the video.

69. The summons named only Constable Cox and the Children’s Court of New South Wales as defendants. Each filed a submitting appearance. There being no active contradictor, the Registrar made an order by consent granting leave to the Attorney General for New South Wales to intervene and joining him as the third defendant to the proceedings. The Attorney General was the only active respondent to the appeal.

70. The Attorney General filed a response to the summons opposing the relief sought. He did not contend that the decision of the Children’s Court was not amenable to leave under s 53(3)(b) of the Crimes (Appeal and Review) Act. The basis for opposing the relief sought was the contention that the applicant had failed to identify any ground that involved a question of law alone. The Attorney further contended that, even if error was established, the Court would not remit the matter to the Children’s Court because the applicant had not established that the Children’s Court had power to make the orders sought by the applicant. In the written submissions subsequently filed, the applicant contended, and the Attorney accepted, that the question of power was central. As the matter was argued, the question was framed as being whether the magistrate had power to make an order that the matter be heard by a female magistrate and an order excluding men from being present for the playing of the videotape and prohibiting disclosure of the tape to any man.

71. The appeal was determined by Wilson J: [2020] NSWSC 389. Her Honour addressed the application as it was presented, considering each of the orders sought in the Children’s Court separately and in turn. I should emphasise that I make no criticism of her Honour for taking that approach. The judgment records at [2] that the complaint concerning the refusal to stay the prosecution was not pressed before her Honour. The appeal was thus argued with exclusive focus on the legal correctness of the magistrate’s approach to each of the three individual orders sought in prayers (1), (2) and (3) of the amended application in the Children’s Court.

68. That approach led the primary judge to hold a concern as to whether the magistrate’s decision constituted an “interlocutory order” amenable to review under the Crimes (Appeal and Review) Act: at [73]-[74]. After receiving further submissions from the parties on that issue, her Honour concluded that only the refusal of a change of venue enlivened the Supreme Court’s jurisdiction under that Act. Separately, her Honour acceded to the Attorney’s submission that in any event the Children’s Court had no power to grant the principal relief sought.

69. In particular, as to the application for an order that the proceedings be heard by a female magistrate, her Honour said at [99]:

“I am not persuaded that in refusing to grant the plaintiff’s application, for a female Magistrate to hear her trial, his Honour was making an interlocutory order that is amenable to the jurisdiction conferred on this Court pursuant to s 53(3)(b). If I am wrong in that decision, I have concluded that his Honour had no power to grant the application, and thus there could be no error of law in his refusal to do so.”

74. As to the application for an order that men be excluded from the courtroom when the search footage was played and that the evidence not be disclosed to men, her Honour accepted that the order may be an interlocutory order but again held at [114] that the Children’s Court had no power to make it. Her Honour concluded that there could be “no error in declining to make an order without power”.

75. As to the application for a change of venue, the primary judge accepted that the refusal to make such an order is an interlocutory order which would therefore be amenable to the Supreme Court’s appeal jurisdiction under the Crimes (Appeal and Review) Act. Her Honour granted leave pursuant to s 53(3)(b) in respect of that part of the magistrate’s decision. However, her Honour concluded that no error of law had been established in relation to that decision.

76. In light of the applicant’s characterisation of her application for a stay as a “derivative order”, no argument was addressed to that aspect of the magistrate’s decision and the primary judge did not address it.

77. The orders made by Wilson J (leaving aside orders as to costs) accordingly were:

1. Leave to appeal the refusal for a change of venue is granted.

2. Summons dismissed.

Appeal to this Court – requirement for leave

78. The applicant sought leave to appeal on the grounds that the primary judge erred as follows:

1. Error in finding that the decision of the Children’s Court was not an “interlocutory order” [a reference to Wilson J’s finding concerning the order that the matter be heard by a female magistrate].

2. Error in finding there was no power for the magistrate to make the orders sought by the applicant.

3. Error in finding that the magistrate implicitly admitted the evidence of [the Field Officer and the applicant’s mother].

4. Error in not providing sufficient reasons in relation to the procedural fairness ground (being ground 4 in the first appeal).

79. The Attorney did not oppose the application for leave to appeal. In my view, however, the grant of leave should be confined to grounds 1 and 2. Grounds 3 and 4 raise no question of principle and in any event have no utility as they relate to functions that would be discharged afresh if the matter were remitted. Those grounds do not warrant a grant of leave.

80. The question raised by ground 2 as to the Children’s Court’s power to make orders of the kind sought warrants a grant of leave because it raises an important question of principle. It is necessary to include ground 1 as well because the issue it raises is logically anterior to the consideration of ground 2. As already noted, the primary judge concluded that the magistrate’s refusal to grant the application for a female magistrate to hear her trial was not an interlocutory order amenable to review. If the challenge to that conclusion were excluded from the scope of the present appeal, there would be no juridical basis for this Court to consider that part of the decision. For those reasons, I would grant leave to appeal confined to grounds 1 and 2.

Ground 1 – whether the decision of the Children’s Court was amenable to review under the Crimes (Appeal and Review) Act

81. Order (1) sought by the applicant was “that the matter be heard by a female magistrate”. As noted by Leeming JA during the argument of the present appeal, the juristic nature of an order in such terms is unclear. It could not be understood as a mandatory injunction addressed to any particular person, nor could any person be prosecuted for contempt if the course contemplated by such an order did not transpire. His Honour posited the order in the category of a “procedural adjustment” with no sanction save for the fact that, if it did not eventuate, there should be a permanent stay.

82. So understood, as noted by Basten JA during the same exchange, the application could be viewed in substance as an application for a conditional permanent stay; that is, an application for an order that, unless and until certain conditions are met, the proceedings be stayed.

83. Senior counsel for the Attorney General accepted that the application would be capable of being characterised in that way (noting that it had not been, “until today”). He noted that the applicant did not “press for” the order for a permanent stay in the proceedings before the primary judge. However, the reason given by the applicant to the primary judge for not arguing the stay in that appeal was that she characterised it as a “derivative order”. The fact remains that the substance of the application in the Children’s Court was to secure procedural arrangements that would accommodate the applicant’s concerns about the showing of her sensitive body parts to men contrary to Aboriginal lore, failing which (“otherwise”) she sought to have the proceedings stayed.

84. Separately, senior counsel for the Attorney General submitted that, accepting that the Children’s Court has power to grant a permanent stay, a question would still arise as to the power to impose the conditions sought. It will be necessary to return to that question in the discussion of ground 2. Viewed as being in substance the refusal of a stay, the decision of the magistrate was an interlocutory decision amenable to review under the Crimes (Appeal and Review) Act (subject to leave and only on a ground that involved a question of law alone).

Ground 2 - power of the Children’s Court to make the orders sought

85. The principal question raised by ground 2 is whether the Children’s Court has power, in an appropriate case, to grant a conditional stay of criminal proceedings that includes a condition designating the matter as one to be heard by a female (or male) magistrate. I have not overlooked the second order sought by the applicant (that no men be present for the playing of the videotape of the search and that it not be disclosed to any men). However, the identification of the magistrate’s misconception as to the need for the video to be played to male witnesses for their “comment” would seem to resolve the perceived difficulty with such an order. Section 10 of the Children (Criminal Proceedings) Act 1987 (NSW) confers power to exclude any male during the playing of the video (indeed during the hearing), including any male police officer other than during his evidence. Section 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) confers power to prohibit the publication of the video on any of the grounds in s 8, of which grounds 8(1)(a) and (e) would be relevant here.

86. The question of power to ensure that the proceedings are heard by a female magistrate is more difficult. The Children’s Court has the powers of the Local Court in criminal proceedings; s 27 of the Children (Criminal Proceedings) Act provides (subject to exceptions that do not arise here) that any Act or other law relating to the functions of the Local Court or Magistrates or to criminal proceedings before them applies to the Children's Court, and to any criminal proceedings before the Children's Court. However, perhaps unsurprisingly, the powers of the Local Court do not include any express statutory power to direct that proceedings be heard by a magistrate of a particular sex.

87. In the application in the Children’s Court and in the appeal before Wilson J, the applicant relied on the general power under s 28 of the Local Court Act 2007 (NSW) and the similar power under s 23B of the Children’s Court Act.

88. Section 28 of the Local Court Act provides:

28   Court may give directions in circumstances not covered by rules

(1)   In relation to particular proceedings, the Court may give directions with respect to any aspect of practice or procedure not provided for by or under this Act, the Criminal Procedure Act 1986, the Civil Procedure Act 2005 or any other Act.

(2)   Anything done in accordance with such a direction (including the commencing of proceedings and the taking of any step in proceedings) is taken to have been validly done.

89. Section 23B of the Children’s Court Act similarly provides:

23B   Court may give directions in circumstances not covered by rules or practice notes

(1)   In relation to particular proceedings, the Court may, in respect of any matter for which the rules or practice notes do not make provision, give directions that the Court considers appropriate in connection with the practice and procedure to be followed in relation to that matter.

(2)   Any such direction has no effect to the extent that it is inconsistent with any provision of the Children and Young Persons (Care and Protection) Act 1998 relating to proceedings before the Court.

(3)   Anything done in accordance with a direction under this section (including the commencing of proceedings and the taking of any step in proceedings) is taken to have been validly done.

90. The applicant submitted that the basis on which the primary judge concluded that s 28 does not confer power to order another magistrate to hear a particular case or to exclude all men from the courtroom when the footage was played is unclear. I disagree. At least concerning the application to have the matter heard by a female magistrate, the basis for her Honour’s conclusion echoed the point made by Leeming JA during the hearing of the present appeal (noted above). Viewed in isolation, order (1) sought in the Children’s Court was framed as an order in the nature of a mandatory injunction that the matter be heard by a female magistrate; that is, an order by a magistrate purporting to bind other magistrates. Wilson J concluded that s 28 of the Local Court Act did not confer power to make such an order: at [89].

91. Her Honour noted at [87] that the applicant had also relied upon “the court’s implied jurisdiction”. It is recognised that the powers of the Local Court include powers derived by implication from the statutory provisions that confer its jurisdiction and that those powers extend to ordering a stay of criminal proceedings: Grassby v R (1989) 168 CLR 1; [1989] HCA 45. However, her Honour concluded that the applicant’s reliance on the Court’s implied power did not take the matter any further, saying at [98]:

“I am very doubtful that there is any implied power that would permit one magistrate to order another magistrate to hear a particular case.”

92. Framed in those terms, her Honour’s conclusion was unexceptionable, so far as it went. However, in my respectful opinion, it overlooked the extent of the Court’s authority to control its own process in particular proceedings and so misconstrued the nature of the order sought.

93. The applicant reminded the Court of the explanation of the nature of the implied powers of an inferior court of limited jurisdiction in the judgment of Dawson J in Grassby at 16-17. The relevant passage is long, but warrants repeating in full:

“Inherent jurisdiction is an elusive concept and the proposition that it arises from the nature of a court has been described as metaphysical. See (1947) 57 Yale Law Journal 83, at p 85, cited by Jacob, "The Inherent Jurisdiction of the Court", (1970) 23 Current Legal Problems 23, at p 27. But it is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power. In the discharge of that responsibility it exercises the full plenitude of judicial power. It is in that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminster. On the other hand, a magistrate's court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest). Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J. points out, fundamental.

…

It would be unprofitable to attempt to generalize in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be "derived by implication from statutory provisions conferring particular jurisdiction". There is in my view no reason why, where appropriate, they may not extend to ordering a stay of proceedings: cf. R. v. Hush; Ex parte Devanny (1932) 48 CLR 487, at p 515.”

94. It may be seen from that discussion that the implication of power to grant a stay is but one aspect of the jurisdiction arising by implication carried by an inferior court to ensure the effective exercise of the limited jurisdiction expressly conferred by the relevant statutory regime.

95. The implication of power permanently to stay criminal proceedings was considered in a different context in Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46, a decision published on the same day as Grassby. The decision in Jago makes plain that a permanent stay should be granted only in the most exceptional circumstances, the purpose of criminal proceedings being “to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, deserving of punishment”: at 47 (Brennan J).

96. Mr Jago had made an application to the trial judge at the time of his arraignment for a permanent stay on the grounds of undue delay in bringing the matter to trial. While accepting that the District Court had power to grant a stay, the High Court held that the trial judge had correctly refused the application in the circumstances of that case.

97. Mason CJ accepted that, whether viewed as a means of preventing a species of abuse of process (taking a wide interpretation of that concept) or as the exercise of “an inherent power to prevent their processes being used in a manner which gives rise to injustice”, courts may order that criminal proceedings be stayed for the purpose of preventing injustice to the accused caused by undue delay: at 31. However, his Honour noted that, once the existence of such a power is recognised, it “necessarily follows that other orders may be made in cases of undue delay for that purpose”, such as an order that the trial be expedited.

98. His Honour continued at 32 (citations omitted):

“It would be unwise to venture upon an abstract consideration, divorced from the concrete facts in specific cases, of the circumstances in which it would be appropriate to order expedition rather than a stay or vice versa. But it is important to bear in mind that the court may mould its order to meet the exigencies of the particular case. The court may grant a limited or conditional stay and it might even order that a proceeding be stayed and not proceeded with without an order of the court.”

99. As already explained, a “limited or conditional stay” is in substance what the applicant sought here. Mason CJ’s emphasis on the court’s ability to “mould its order to meet the exigencies of the particular case” is significant in that context.

100. It is also significant that his Honour referred to the possibility of making an order that a hearing be expedited. Such an order is of the same juristic nature as an order that the proceedings be heard by a female magistrate in that it could not be understood as a mandatory injunction addressed to any particular person, and no person could be prosecuted for contempt if the course it contemplated did not transpire. Contrary to the conclusion reached by the primary judge at [98], I do not accept that the relief sought in the Children’s Court was for “one magistrate to order another magistrate to hear a particular case”. By the same reasoning, there would be no implied power to make an order that a hearing be expedited, because it would permit one magistrate to order another magistrate to list and hear a particular case quickly.

101. The existence of power to make an order for expedition is uncontroversial. Such orders are common; indeed, the Supreme Court used to conduct an “Expedition List”. I accept that it is a significant step to conclude that the relief that can be moulded within the scope of the Children’s Court’s implied jurisdiction to prevent injustice to an accused extends to the making of an order requiring the matter to be heard by a magistrate of a particular sex. Whether that is a step too far requires consideration of the express statutory powers of that court.

102. The Children (Criminal Proceedings) Act includes a number of provisions that recognise the special vulnerability of children and which are calculated to afford a measure of protection beyond that which is afforded to adult persons accused of criminal offences.

103. Section 6 of the Act specifies a mandatory list of principles relating to the exercise of the Children’s Court’s functions, as follows:

6   Principles relating to exercise of functions under Act

A person or body that has functions under this Act is to exercise those functions having regard to the following principles--

(a)    that children have rights and freedoms before the law equal to those enjoyed by adults and, in particular, a right to be heard, and a right to participate, in the processes that lead to decisions that affect them,

(b)   that children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance,

(c)    that it is desirable, wherever possible, to allow the education or employment of a child to proceed without interruption,

(d)    that it is desirable, wherever possible, to allow a child to reside in his or her own home,

(e)    that the penalty imposed on a child for an offence should be no greater than that imposed on an adult who commits an offence of the same kind,

(f)    that it is desirable that children who commit offences be assisted with their reintegration into the community so as to sustain family and community ties,

(g)    that it is desirable that children who commit offences accept responsibility for their actions and, wherever possible, make reparation for their actions,

(h)    that, subject to the other principles described above, consideration should be given to the effect of any crime on the victim.”

104. Section 7 precludes the Local Court and the Drug Court from hearing or determining criminal proceedings that a Children's Court has jurisdiction to hear and determine, indicating an intention to create a specialist court with expertise in dealing with children.

105. Section 9 commands expedition in bringing a child before the Court where the child is in custody. It may be noted in that context that s 18(1) of the Bail Act 2013 (NSW), which prescribes a mandatory, exhaustive list of considerations to be taken into account in assessing any bail concerns, includes in subs (k):

18   Matters to be considered as part of assessment

…

(k)    any special vulnerability or needs the accused person has including because of youth, being an Aboriginal or Torres Strait Islander, or having a cognitive or mental health impairment.

106. While that provision does not concern the hearing of substantive criminal proceedings, it is a statutory acknowledgment of the potential vulnerability of young, Aboriginal people in their encounters with the criminal justice system.

107. As already noted, s 10 of the Children (Criminal Proceedings) Act provides for the criminal proceedings against a child to be conducted in the absence of the public.

108. Section 12 is particularly relevant. That section provides:

12    Proceedings to be explained to children

(1)   If criminal proceedings are brought against a child, the court that hears those proceedings must take such measures as are reasonably practicable to ensure that the child understands the proceedings.

…

(3)    The Children's Court shall, if requested by the child or by some other person on behalf of the child, explain to the child--

(a) any aspect of the procedure of the Children's Court, and

(b) any decision or ruling made by the Children's Court,

in or in relation to the proceedings.

(4)    A court shall give the child the fullest opportunity practicable to be heard, and to participate, in the proceedings.

109. The evidence in the present case was to the effect that, if the proceedings could not be heard by a female magistrate, the applicant did not wish to defend the matter. If that evidence is accepted, it establishes that, for the effective exercise of the function of giving the applicant the fullest opportunity practicable to be heard, and to participate, in the proceedings, the matter should be heard by a female magistrate.

110. Finally, s 15A prohibits the identification of a child to whom the proceedings relate. That is an acknowledgment of that the interests of justice have a more tender concern for the opprobrium attending criminal proceedings in the case of young persons.

111. It may be accepted that the implied powers possessed by an inferior court are confined to those that arise by necessary implication. Still, the breadth and protective nature of a number of those powers and functions suggests that flexible, protective powers may be implied for their effective exercise.

112. On the subject of conditional stays, Dr Kell SC, who appeared with Ms Caldwell for the Attorney General, very fairly drew the Court’s attention to a potentially relevant line of authority beginning with the decision of the Court of Criminal Appeal in R v Mosely (1992) 28 NSWLR 735. The decision held that, although the District Court had no power to make an order for the payment of costs in criminal proceedings, the Supreme Court had jurisdiction to modify an invalid stay order so as to provide that the trial would not proceed until the Crown had compensated the accused for costs thrown away due to the fault of the Crown. The decision was helpfully summarised by Simpson J in R v Fisher (2003) 138 A Crim R 318 at [23]-[24]; [2003] NSWCCA 41 as follows:

“In Mosely, the circumstances bore some passing resemblance to the present. On the morning of the date fixed for trial and without prior notice to the accused, the Crown sought an adjournment of the proceedings. The trial judge granted the adjournment but ordered the Crown to pay the accused’s costs. The Crown, not having paid the costs, subsequently sought to have the matter listed for trial. A different District Court judge granted a stay of proceedings expressed to be in force until the costs order made by the trial judge had been met.

On appeal by the Crown to this court, Gleeson CJ, with whom Kirby P and Mahoney JA agreed, held that the first judge had no power to make the order for costs, and, further, that the power conferred by s 6 of the District Court Act 1973 to grant an adjournment and to do so on such terms and conditions as the court thinks fit, could not be construed as permitting the court to grant the prosecution an adjournment subject to a condition that it pay costs. Nevertheless, their Honours held, the Supreme Court had jurisdiction, in the exercise of its own discretion, to modify an invalid order staying proceedings, so that the trial of an accused person should not proceed until the Crown had compensated the accused for the costs thrown away by an earlier adjournment. The court accordingly made an order in those terms, although Gleeson CJ expressly did so in the context of what he referred to as “the special and unusual circumstances” of that case.”

113. Although the stay order was made by the Court of Criminal Appeal in Mosely, Simpson J did not read the decision as concluding that a District Court judge does not have power to make an order of that kind: at [30]. I respectfully agree.

114. Santow JA agreed with Simpson J in Fisher, adding the following remark at [1]:

“The reasoning in Mosely makes it clear that had the matter originally proceeded as an application by the defendant for a stay of proceedings, until such time as the Crown paid the defendant’s wasted costs (from the Crown’s inability to proceed on the day of the trial), that order could have been made provided there were no order actually imposing costs on the Crown.”

115. His Honour further explained at [5]:

“While it might be argued that the distinction between imposing an order for costs and staying a trial until costs are paid is a narrow one, nonetheless the distinction is real and important. It respects the prohibition upon a court imposing a cost order upon the Crown, a constraint recognised in Dietrich v the Queen (1992) 177 CLR 292. It remains a matter for the Crown as to whether it ultimately chooses to proceed and pay the wasted costs, or decline to proceed.”

116. Finally, I note that the applicant relied on authorities in the field of native title law in which the Federal Court has accepted that, where it is established that Aboriginal cultural and customary concerns prohibit the disclosure of secret women’s business or secret men’s business to certain classes of people, the Court has power under s 17 and s 50 of the Federal Court of Australia Act 1976 (Cth) to impose gender-based restrictions concerning access to such evidence: Western Australia v Ward (1977) 76 FCR 592; Jango v Northern Territory of Australia [2003] FCA 1230; Northern Territory v Mr A. Griffiths (deceased) and Lorraine Jones on behalf of the Ngaliwurru and Nungali Peoples [2019] HCA 19; Re Lake Torrens Overlap Proceedings (No 2) [2015] FCA 1195. Those authorities are helpful to the extent that they recognise the importance of accommodating Aboriginal cultural and customary concerns where practicable but they do not answer the difficult question raised by the application to have the matter heard by a female magistrate.

117. I have concluded, by analogy with the reasoning in Mosely, that there is no reason in principle why such a condition should not be imposed. I acknowledge that there is a difference between the form of conditional stay in Mosely and the present case. The condition of the stay in Mosely fell to be performed (or not) by the Crown. The condition of the stay sought in the present case is a matter that falls to the internal administrative arrangements of the Children’s Court.

118. However, as emphasised by the applicant, her case is not one that raises any question as to the competence or ability of judicial officers of one sex or another to hear particular types of cases. She accepts that it is not open to an accused person to “choose their judicial officer as a matter of convenience”. In seeking to have the matter heard by a female magistrate, the applicant is not seeking to have the matter heard by a particular magistrate, any more than an application for a change of venue to, say, Orange Local Court is an application to have the matter heard by the magistrate who happens to be sitting at Orange on the date fixed for trial. The authority of a Children’s Court magistrate to hear a criminal matter is institutional, not personal to the magistrate. Authorities supporting that proposition were collected in the judgment of Basten JA in O’Shane v Harbour Radio (2013) 85 NSWLR 698; [2013] NSWCA 315 at [230], with whom I agreed at [263] (his Honour and I were in dissent in that case but that does not derogate from the correctness of the proposition):

“The acts of the judicial officer are the acts of the court, not the acts of an individual; the judge is not a party to any appeal; judicial review of orders made is properly brought against the court or tribunal, not against the judicial officer who made the orders: Brown v Rezitis [1970] HCA 56; 127 CLR 157 at 169 (Barwick CJ); Kerr v Commissioner of Police [1977] 2 NSWLR 721 at 724-725 (Moffitt P, Hope and Samuels JJA agreeing); Re Ruddock; Ex parte Reyes [2000] HCA 66; 75 ALJR 465 at [25]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; 228 CLR 294 at [43] (McHugh J); Police Integrity Commission v Shaw [2006] NSWCA 165; 66 NSWLR 446 at [43].”

119. It follows, in my view, that the imposition of a condition of a stay that a matter be heard by a magistrate of a particular sex, provided such a condition is necessary for the effective exercise of the court’s statutory powers, does not derogate from the Children’s Court’s institutional authority. The Court’s jurisdiction is blind as to whether it is exercised by a male or a female.

120. Since writing this judgment, I have had the benefit of considering the judgment of Basten JA. Although I have concluded that the primary judge erred in holding that the Children’s Court did not have power to make the orders sought, I agree with his Honour that the error did not affect the dispositive reasoning of the magistrate in this case. For that reason, I agree with the orders proposed by Basten JA. However, I remain of the view that the magistrate mistook the implications of the second order sought. Contrary to the contentions put to the primary judge, I do not accept that was a ground that raised a question of law alone so as to enliven the Supreme Court’s jurisdiction under s 53(3)(b) of the Crimes (Appeal and Review) Act. However, there is nothing to preclude the applicant from making a fresh application in the Children’s Court.

***********

I certify that this and the 44 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice McCallum and of the Court.

Dated: 10 March 2020

Associate: N Sinclair

Endnotes

Amendments

10 March 2021 - Inclusion of a heading at [40]

16 March 2021 - Change of counsel's name at [112]

08 July 2021 - Correction of a grammatical error at [45] and typographical errors at [52], [62] and [105].

12 July 2021 - [8] Inserting "with" after "dispense".

[9] Inserting "an" before "affidavit".

[19] Correcting spelling of "challengeable".

[20] Inserting full stop at end of paragraph.

[22] Amending "man" to "men" in quote in first sentence.

[26] Inserting a colon after "law" in place of full stop.

[30] Amending "s 3(1)" to read "s 3".

[31] Inserting comma after "that is, ...)" and correcting spelling of "advisers".

[34] Amending "males" to read "male" in second sentence.

[37] Amending "having determined" to read "had determined" and "but refused" to read "but had refused".

Decision last updated: 12 July 2021