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R v Hayward

R v Hayward

Case [2017] NSWSC 1170 1 September 2017

Statutory Interpretation

Admissibility of Evidence

Appeal

Criminal Law

Evidence Law

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Supreme Court

New South Wales

Medium Neutral Citation: R v Hayward [2017] NSWSC 1170
Hearing dates: 28 August 2017
Decision date: 01 September 2017
Jurisdiction: Common Law
Before: R A Hulme J
Decision:
The proceedings are remitted to the District Court of New South Wales.

Catchwords:
STATUTORY INTERPRETATION – Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29(1)(d)(iii) – whether reports made to Department of Family and Community Services admissible in criminal proceedings in Supreme Court – principle of legality – whether clear and unmistakable language used to abrogate right to a fair trial – clear language in earlier form of s 29(1)(d) – right to a fair trial according to law – reference had to Second Reading Speech – proceedings in s 29(1)(d) are “child welfare proceedings” – s 29(1)(d)(iii) not a reference to all proceedings in this Court involving children – reports inadmissible in criminal proceedings in this Court
PRACTICE AND PROCEDURE – offences relating to physical abuse of a child – accused seeks to rely on reports made to the Department of Family and Community Services – perceived bar to admissibility in District Court based on Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29 – conditional exemption to present indictment in this Court – reports held to be inadmissible – matter remitted to District Court
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29
Children's (Criminal Proceedings) Act 1987 (NSW) s 15A
Coroners Act 2009 (NSW)
Criminal Procedure Act 1986 (NSW) s 128(2), Ch 6 Pt 5 Div 2
Family Law Act 1975 (Cth)
Interpretation Act 1987 (NSW) s 34
Victims Rights and Support Act 2013 (NSW)
Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27
AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028
Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; 57 NSWLR 113
Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; 226 FLR 388
Director General, Dept of Family and Community Services v FEW [2013] NSWSC 1448
Huntlee Pty Ltd v Sweetwater Action Group Inc; Minister for Planning and Infrastructure v Sweetwater Action Group Inc [2011] NSWCA 378
Osborne v R [2014] NSWCCA 17; 238 A Crim R 417
Police v Dunstall [2015] HCA 26; 256 CLR 403
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115
TF v Department of Family & Community Services [2015] NSWSC 694
The Application of the Attorney General for New South Wales dated 4 April 2014 [2014] NSWCCA 251; 246 A Crim R 150
Undershaft (No 1) Ltd v Federal Commissioner of Taxation [2009] FCA 41; 175 FCR 150
Category: Principal judgment
Parties: Regina
Hayward (a pseudonym)
Representation:
Counsel:
Ms H Roberts (Crown)
Mr S Boland (Accused)
Solicitors:
Solicitor…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Hayward

Details

AGLC: R v Hayward [2017] NSWSC 1170
Case: [2017] NSWSC 1170
Decision Date: 01 September 2017

CaseChat Overview and Summary

In the case of R v Hayward, the respondent, who was charged with an offence related to the physical abuse of a child, sought to rely on reports made to the Department of Family and Community Services to challenge the admissibility of evidence in the District Court. The Supreme Court of New South Wales was tasked with determining whether these reports were admissible in criminal proceedings. The primary legal issue before the court was the interpretation of section 29(1)(d)(iii) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), which pertains to the admissibility of certain reports in child-related criminal proceedings.

The court examined whether the language of section 29(1)(d)(iii) was clear and unmistakable in abrogating the right to a fair trial, a fundamental principle under Australian law. The court noted that the earlier form of section 29(1)(d) used clear language that explicitly restricted the admissibility of certain reports in court proceedings. This led to an analysis of the principle of legality, which requires that any law that abrogates a fundamental right must be expressed in clear and unmistakable terms. The court also considered the Second Reading Speech of the Act to understand the legislative intent behind section 29(1)(d). It concluded that section 29(1)(d) referred specifically to "child welfare proceedings" and not to all proceedings in the court involving children. Consequently, the court held that section 29(1)(d)(iii) did not apply to all criminal proceedings in the Supreme Court involving children, and therefore, the reports in question were inadmissible in the criminal proceedings before the District Court.

The Supreme Court remitted the matter to the District Court for further proceedings, ensuring that the admissibility of the reports did not contravene the principles of a fair trial. The court's decision underscored the importance of statutory interpretation in ensuring that legislative intent is properly applied, and fundamental rights are not inadvertently infringed.

Orders