R v Hayward

[2017] NSWSC 1170

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 for Public Prosecutions Blair Criminal Lawyers
File Number(s):	2014/272919

Judgment

1. HIS HONOUR: Two pre-trial issues have been raised for determination in this matter. Broadly speaking, they each concern the accused's endeavour to rely at her trial upon material produced under subpoena by the Department of Family and Community Services (“Family and Community Services”).

2. It is sufficient to say that the accused is to stand trial upon an indictment alleging a number offences concerning physical abuse of a young boy who was temporarily living in her home in 2014. The child's mother and another person have pleaded guilty to various offences concerning their involvement in the abuse of the child. They have agreed to give evidence against the accused.

3. Nothing may be published or broadcast that would identify or tend to identify any children: s 15A Children's (Criminal Proceedings) Act 1987 (NSW). In addition, given proceedings before a jury are outstanding, a pseudonym has been used in substitution for the name of the accused.

4. Part of the proposed defence is to contend that the child’s mother’s evidence incriminating the accused is incredible and unworthy of belief. It is also to suggest that she was responsible for inflicting more violence upon her son than she has admitted. In this respect she seeks to rely upon Family and Community Services material in an endeavour to establish such things as the mother having a history of inflicting injuries upon the child herself; blaming others for injuries inflicted upon the child; failing to seek medical treatment for the child; and fearing and having antipathy towards Family and Community Services. (This is not intended to be exhaustive.) Some of this material concerns the child the subject of these proceedings whilst some of it concerns children previously born to the mother who had been taken into care by Family and Community Services.

5. The accused contends that such material is admissible as relationship evidence, context evidence, credibility evidence and tendency evidence. The admissibility of the evidence in any of those ways is the second issue that arises. The first, and fundamental, issue concerns a question as to whether the accused can overcome a statutory hurdle to admissibility within s 29 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("the Act").

History of the proceedings

6. The accused was arrested and charged on 16 September 2014. She was committed to the District Court at Penrith on 31 July 2015. A trial was due to commence in the District Court on 28 August 2017.

7. The offences with which the accused is charged are not within the class identified in [16] of Practice Note SC CL 2. On 15 August 2017 the Acting Chief Justice of New South Wales granted an exemption pursuant to s 128(2) of the Criminal Procedure Act 1986 (NSW) to allow the indictment to be presented in this Court.

8. The exemption was granted because of the perceived absolute bar provided by s 29(1)(d) to the admissibility of any report made under the Act in the District Court which, arguably, did not apply in this Court. The exemption was conditional; if it is held that the evidence is inadmissible by virtue of the provisions of the Act, or ruled inadmissible for any other reason, the indictment in this Court will be withdrawn and a further indictment will be presented in the District Court.

Statutory provisions

9. According to the Long title, the Act is “to provide for the care and protection of, and the provisions of services to, children and young persons; and for other purposes”.

10. The objects of the Act are set out in s 8:

“8 What are the objects of this Act?

The objects of this Act are to provide:

(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(a1) recognition that the primary means of providing for the safety, welfare and well-being of children and young persons is by providing them with long-term, safe, nurturing, stable and secure environments through permanent placement in accordance with the permanent placement principles, and

(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment.”

11. Section 29 is included in Pt 2 of Ch 3, which comprises ss 23 to 29A. To put s 29 into context, the following sections may be noted. (There are numerous references to “child or young person” in the legislation. For ease I will hereafter confine references to a child (or children) and omit references to young persons.)

●   Section 23 provides for circumstances in which a child is “at risk of significant harm”.

● Section 24 provides that a person who suspects on reasonable grounds that a child is, or a class of children are, at risk of significant harm may make a report to the Secretary of Family and Community Services.

● Section 25 makes similar provision for pre-natal reports.

● Section 26 provides that reports under ss 24 and 25 may be made anonymously.

● Section 27 provides for mandatory reporting by persons in certain professions and workplaces (health care providers and teachers for example).

● Section 27A provides for alternative reporting arrangements by certain organisations.

●   Section 28 provides that the Secretary of Family and Community Services must keep records of reports and of the action taken as a consequence.

● Sections 29AA and 29A make provisions that are not presently relevant.

12. Section 29 of the Act provides:

“29 Protection of persons who make reports or provide certain information

(1)   If, in relation to a child or young person or a class of children or young persons, a person makes a report in good faith to the Secretary or to a person who has the power or responsibility to protect the child or young person or the class of children or young persons:

(a)    the making of the report does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct, and

(b)   no liability for defamation is incurred because of the report, and

(c)   the making of the report does not constitute a ground for civil proceedings for malicious prosecution or for conspiracy, and

(d)   the report, or evidence of its contents, is not admissible in any proceedings other than the following proceedings (and appeals arising from the following proceedings):

(i)   care proceedings in the Children’s Court,

(ii)   proceedings in relation to a child or young person under the Family Law Act 1975 of the Commonwealth,

(iii)   proceedings in relation to a child or young person before the Supreme Court or the Civil and Administrative Tribunal,

(iv)   proceedings before the Civil and Administrative Tribunal that are allocated to the Guardianship Division of the Tribunal or are commenced under the Victims Rights and Support Act 2013,

(v)   proceedings under the Coroners Act 2009, and

(e)   a person cannot be compelled in any proceedings to produce the report or a copy of or extract from it or to disclose or give evidence of any of its contents, and

(f)   the identity of the person who made the report, or information from which the identity of that person could be deduced, must not be disclosed by any person or body, except with:

(i)   the consent of the person who made the report, or

(ii)   the leave of a court or other body before which proceedings relating to the report are conducted,

and, unless that consent or leave is granted, a party or witness in any such proceedings must not be asked, and, if asked, cannot be required to answer, any question that cannot be answered without disclosing the identity or leading to the identification of that person.

(1A)   A certificate purporting to be signed by the Secretary that a document relating to a child or young person or a class of children or young persons is a report to which this section applies is admissible in any proceedings and, in the absence of evidence to the contrary, is proof that the document is such a report.

(2)   A court or other body cannot grant leave under subsection (1) (f) (ii) unless the court or other body is satisfied that the evidence is of critical importance in the proceedings and that failure to admit it would prejudice the proper administration of justice.

(3)   A court or other body that grants leave under subsection (1) (f) (ii):

(a)   must state the reasons why leave is granted, and

(b)   must ensure that the holder of the report is informed that evidence as to the identity of the person who made the report, or from which the identity of that person could be deduced, has been disclosed.

(3A)   The protections given by this section to a person who makes a report apply to:

(a)   any person who provided information on the basis of which the report was made, in good faith, to the person, and

(b)   any person who otherwise was in good faith concerned in making such a report or causing such a report to be made,

in the same way as they apply in respect of the person who actually made the report.

(4)   Subsection (1) (f) does not prevent the disclosure of information from which the identity of a person may be deduced if the prohibition on the disclosure of that information would prevent the proper investigation of the report.

(4A)   Subsection (1) (f) also does not prevent the disclosure to a law enforcement agency of the identity of the person who made the report (the reporter), or information from which the identity of the reporter could be deduced, if:

(a)   the identity of the reporter, or the information, is disclosed in connection with the investigation of a serious offence or reportable conduct alleged to have been committed or done against a child or young person, and

(b)   the disclosure is necessary for the purposes of safeguarding or promoting the safety, welfare and well-being of any child or young person (whether or not the victim of the alleged offence).

(4B)   However, subsection (4A) does not apply unless:

(a)   a senior officer of the law enforcement agency to which the disclosure is made has, before the disclosure is made, certified in writing that obtaining the reporter’s consent would prejudice the investigation of the serious offence or reportable conduct concerned, or

(b)   the person or body that makes the disclosure has, before making the disclosure, certified in writing that it is impractical to obtain the consent of the reporter.

(4C)   The person or body that discloses to a law enforcement agency the identity of the reporter, or the information from which the identity of the reporter could be deduced, is required to notify the reporter of the disclosure unless:

(a)   it is not reasonably practicable in the circumstances to do so, or

(b)   the law enforcement agency to which the disclosure is made has advised the person or body that notifying the reporter would prejudice the investigation of the serious offence or reportable conduct concerned.

(5)   (Repealed)

(6)   In this section:

court includes a court exercising federal jurisdiction.

law enforcement agency means any of the following:

(a) the NSW Police Force,

(b) the Australian Federal Police,

(c) the police force of another State or Territory,

(d) a person or body prescribed by the regulations for the purposes of this definition.

report includes a report under sections 24, 25, 27, 120, 121 and 122.

reportable conduct means:

(a) reportable conduct within the meaning of Part 3A of the Ombudsman Act 1974 or conduct referred to in clause 2 of Schedule 1 to the Child Protection (Working with Children) Act 2012, or

(b) conduct occurring elsewhere than in New South Wales that, if occurring in New South Wales, would be reportable conduct under paragraph (a).

senior officer means:

(a) in relation to the NSW Police Force—a commissioned police officer within the meaning of the Police Act 1990, or

(b) in relation to any other law enforcement agency—a person (or class of persons) prescribed by the regulations as a senior officer of the agency.

serious offence means:

(a) a serious indictable offence within the meaning of the Crimes Act 1900, or

(b) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be an offence under paragraph (a).”

Previous consideration of s 29 of the Act

13. The construction of s 29 of the Act, after amendments made by the Children and Young Persons (Care and Protection) Amendment Act 2010 (NSW) ("the 2010 Amendment Act") has fallen for consideration in only one case to the knowledge of the parties.

14. In The Application of the Attorney General for New South Wales dated 4 April 2014 [2014] NSWCCA 251; 246 A Crim R 150 three questions were submitted for determination by the Court of Criminal Appeal. A trial judge had compelled Family and Community Services to produce reports which had been made pursuant to the Act concerning a deceased child, except insofar as they disclosed or tended to disclose the identity of the person or persons who made the reports: Director General, Dept of Family and Community Services v FEW [2013] NSWSC 1448. Her Honour had rejected a submission of the Director General of Family and Community Services that s 29 prevented the Court from requiring the production. She relied upon the principle of legality in that the accused's common law right to a fair trial would be jeopardised if s 29 were construed to preclude the Court from ordering production. She held that the Act did not manifest any clear Parliamentary intention to restrict an accused person’s access to documents material to his or her defence. She also rejected a submission that a further reason for not compelling production was that the reports were privileged because s 29(1)(d) rendered them inadmissible.

15. Macfarlan JA (Beazley P and Bellew J agreeing) discussed (at [15]-[17]) the principle of legality. He referred to a number of decisions of the High Court of Australia for relevant principles:

Coco v The Queen [1994] HCA 15; 179 CLR 427 at 437: an intention by the legislature to interfere with fundamental rights must be clearly manifested by unmistakable and unambiguous language. General words will be rarely sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.

X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 at [86]: the legislature would not overthrow fundamental principles, infringe rights, or depart from the general system of law without expressing its intention to do so with irresistible clearness.

Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196 at [29]: a statute affecting important common law rights and procedural and other safeguards of individual rights and freedoms will be construed as affecting no more than is strictly required by clear words or as a matter of necessary implication.

16. Macfarlan JA also referred (at [18]) to the observation of Lord Hoffman in R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 at 131 about the rationale for requiring that Parliament make clear its intention to interfere with fundamental rights and freedoms:

"The constraints upon [Parliament's power to legislate contrary to fundamental rights] are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual."

17. At [24]-[28], Macfarlan JA made a number of observations about s 29 of the Act in order to demonstrate that the protections afforded by s 29 are not absolute and the provision did not exhibit an intention to preclude a person such as the accused in a murder trial in the Supreme Court from ever coming into possession of relevant reports made to Family and Community Services. The intention was limited to precluding production being compelled.

18. Macfarlan JA expressed his conclusions as to the construction of s 29 (at [29]-[33]) as follows:

“In my view s 29 should not be construed so as to preclude the accused in a criminal trial from compelling, by subpoena, production of s 29 reports that are relevant to the issues at the trial. Thus, I consider that the principle of legality to which I have referred above (see [15] to [19]) requires that the general words of s 29(1)(e) be read down so as not to interfere with the accused's right to a fair trial. As indicated above (see [21] to [23]), that right relates to the "whole course of the criminal process" and includes an accused's right to require third parties to produce relevant documents on subpoena duces tecum.

The legislature has not expressed its intention to abrogate this right ‘with irresistible clearness’ (see [15] above) or ‘by unmistakable and unambiguous language’ (see [17] above). In the words of Lord Hoffmann (see [18] above), the legislature has not ‘squarely confront[ed]’ the issue and ‘general or ambiguous words’ are insufficient to abrogate such a right.

The terms of s 29(1)(f) provide some confirmation that the present issue was not addressed by the legislature. That paragraph prohibits disclosure of the identity of a reporter without either the consent of that person or the leave of the court or other body before which proceedings relating to the report are conducted. Thus, a court could, if it considered ‘that the evidence is of critical importance in the proceedings and that failure to admit it [into evidence] would prejudice the proper administration of justice’ (see subsection (2)), permit the disclosure of the identity of a report-maker. It would be anomalous if a court were prevented by s 29(1)(e) from requiring a witness to give evidence of the contents of a s 29 report but could nevertheless require the witness to identify the maker of the report. This would conflict with the apparent purpose of s 29 to protect reporters rather than to protect the contents of reports as an end in itself.

The view that s 29 is concerned to protect the identity of reporters rather than to preclude disclosure of the contents of reports as such is confirmed by the contemplation in s 29(1)(d) that reports may be admitted into evidence in various specified court proceedings. The section does not require confidentiality orders to be made in relation to reports so admitted, save that s 29(1)(f) restricts disclosure of the identity of the reporter.

It follows from the above that the trial judge did not err in construing s 29 and making an order for production of s 29 reports. The three questions submitted by the Attorney General to this Court (see [3] above) should therefore be answered in the negative.”

19. The Court of Criminal Appeal was not called upon to decide an issue as to the types of proceedings in which reports are not excluded from inadmissibility under s 29(1)(d). Fullerton J, however, had done so in the context of dealing with the compellability of production issue in Director General, Dept of Family and Community Services v FEW. She said (at [24]-[25]):

“In addition, reading down s 29(1)(e) also allows for s 29(1)(d) to have what I consider to be its intended statutory operation. The amendments to s 29(1)(d), which commenced on 1 January 2011, extended the list of proceedings in which a report, or evidence of its contents, might be admitted. Prior to the passage of the amending Act, the only proceedings in which a report (or evidence of its contents) was admissible were care proceedings in the Children's Court, or any appeal arising from those care proceedings. As I see it, the construction contended for by the Director General would frustrate, or would tend to frustrate the intention of the Parliament to extend the class of proceedings in which a report might be admitted, since it could not be gainsaid, having regard to the diverse types of proceedings in ss 29(1)(d)(i)-(iv), that a report would necessarily be available to the parties in at least some of those proceedings (whether under a duty of disclosure or as a served document) without any need for the report to be produced compulsorily under subpoena or under a notice to produce.

In my published remarks last week I said that it was neither appropriate nor necessary to make any pre-trial ruling on the admissibility of any of the documents that I have ordered be produced under the subpoena. However, in order to deal with the alternate submission advanced by the Director General at the hearing that the documents are privileged under Rules 1.9(1)(a) and 1.9(3) of the Uniform Civil Procedure Rules 2005 because they are not admissible under any of the subsections of s 29(1)(d) of the Act, I have come to the conclusion that the phrase ‘in relation to’ in s 29(1)(d)(iii), generally regarded as words of particularly wide import, should be treated in this case as including proceedings in this Court where the child is the named victim in a murder trial, there being nothing in the incorporation of that phrase in s 29 of the Act, or from the context in which they appear, which would warrant a more confined meaning. I am satisfied that there is a sufficient connection or association between the child (the subject of the material sought on subpoena) and the pending criminal trial for the documents to be, at least prima facie, admissible, the trial of the accused being a proceeding ‘in relation to a child or young person before the Supreme Court’. On that basis, I reject the alternate submission advanced by the Director General that the documents are subject to a statutory privilege entitling him to resist production under the subpoena.”

20. Fullerton J subsequently gave judgment on the admissibility of certain evidence derived from the material produced by Family and Community Services but there was no further discussion about s 29(1)(d)(iii): R v FEW [2013] NSWSC 1486.

Submissions for the accused

21. Counsel for the accused contended that the exception to inadmissibility provided in s 29(1)(d)(iii) – "proceedings in relation to a child or young person before the Supreme Court or the Civil and Administrative Tribunal" – should be construed so as to apply to all proceedings in this Court, including criminal proceedings.

22. It was submitted that the provision should not be construed so as to confine it to proceedings in this Court that align with the guardianship jurisdiction of the Civil and Administrative Tribunal (“the Tribunal”). To do so would involve reading words into the provision with the result being a derogation of the accused's right to a fair trial. Both the decisions of Fullerton J and the Court of Criminal Appeal implicitly accepted that s 29 of the Act engaged this Court in its criminal jurisdiction.

23. It was submitted that if such a confined construction was intended by Parliament so as to exclude application of s 29(1)(d)(iii) to criminal proceedings it would be necessary for it to have done so "with irresistible clearness" or "by unmistakable and unambiguous language": The Application of the Attorney General for New South Wales dated 4 April 2014 at [30].

24. It was also submitted that while a contrary intention may be apparent from the relevant Second Reading Speech, recourse to such extrinsic material was not necessary. In any event, utilisation of the Second Reading Speech as an aid to construction by the Court of Criminal Appeal was not sufficient to overcome the operation of the principle of legality in relation to s 29. It was submitted that the same should apply in this case.

25. It was submitted that the Court of Criminal Appeal decision was made with knowledge that the trial judge had admitted the evidence in the criminal trial over which she presided. It was therefore said that this Court was bound by this implicit endorsement that such material is admissible in this Court in criminal proceedings.

26. A further point made in oral submissions was that there was significance in the fact that Fullerton J had admitted the evidence in the trial over which she presided and in the intervening years the Executive had not sought to amend the legislation to ensure that this did not recur. (T10.37-11.3) This argument need not be addressed as there are a variety of potential reasons why no further amendment has been made. The critical issue is the construction of the existing provision.

Consideration

27. I will not summarise the opposing submissions of the Crown as they are largely reflected within some of the following reasoning.

Statutory interpretation principles

28. Aside from the aspects of statutory interpretation in the context of the principle of legality referred to earlier, it is appropriate to observe some further principles.

29. Consideration of the text of the provision in question is the starting point: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 at [47].

30. Interpreting the legal meaning of a provision is concerned with giving the words of the provision the meaning Parliament intended them to have: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78].

31. One should arrive at a construction of the provision that is consistent with the language and purpose of all of the provisions of the statute: Project Blue Sky Inc at [69].

32. The meaning of a word can be gathered from its associated words (noscitur a sociis) and where a word stands with other words it must mean something analogous to them: Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; 226 FLR 388 at [12]-[13]. An associated principle is that a reference to a matter in general terms may be read down because of the contextual reference to specific matters (ejusdem generis): Huntlee Pty Ltd v Sweetwater Action Group Inc; Minister for Planning and Infrastructure v Sweetwater Action Group Inc [2011] NSWCA 378 at [127]. Whether or not general words ought to be read down is determined by the whole of the relevant context, including other provisions of the statute and the scope and purpose of the statute: Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; 57 NSWLR 113 at [127].

33. Pursuant to s 34 of the Interpretation Act 1987 (NSW), consideration may be given to extrinsic material (not to displace a clear meaning of the text if there be one: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) at [47]) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision, or to determine the meaning of the provision if it is ambiguous or obscure or if the ordinary meaning conveyed by the text of the provision leads to a manifestly absurd or unreasonable result. Such extrinsic material may include a Second Reading Speech.

The decision of the Court of Criminal Appeal is not binding in relation to the construction of s 29(1)(d)

34. The decision in the Application of the Attorney General for New South Wales dated 4 April 2014 is binding on this Court in its holding that s 29 of the Act enables a court to order production of reports under Part 2 (of Chapter 3) of the Act in response to a subpoena and over objection except insofar as they disclose or tend to disclose the identity of the person or persons who made the reports.

35. Macfarlan JA referred to exceptions to inadmissibility in proceedings listed in s 29(1)(d) (at [27] and [32]). However, nothing was said about the correct construction of the provision for the obvious reason that it was not an issue the Court was called upon to decide. I reject the submission for the accused (T5.10 – 7.23) that was to the effect that silence on the topic may be taken to be an implicit endorsement of the approach of the primary judge in that matter.

36. I do not regard the judgment of the Court of Criminal Appeal as providing a binding precedent for the determination of the question that falls for determination in this proceeding.

Authoritative status of Director General, Dept of Family and Community Services v FEW

37. The judgment of Fullerton J, on the other hand, did confront the question of admissibility under s 29(1)(d). It is not binding upon me but is worthy of the utmost respect: Undershaft (No 1) Ltd v Federal Commissioner of Taxation [2009] FCA 41; 175 FCR 150 at [68]-[88] (Lindgren J). If in the exercise of my own full assessment of the issue, a task I am obliged to carry out, I arrive at a conclusion that differs from her Honour, it would seem mostly likely that this would be because her Honour was not assisted with submissions to the extent that occurred on the present occasion. Her Honour's discussion of the s 29(1)(d) issue is relatively brief (the final two paragraphs of her judgment). She confined herself to a consideration of the scope of the words “in relation to” in s 29(1)(d)(iii).

38. That is unsurprising as her Honour was more concerned with the principle issue she was called upon to decide, that of compellability of production. The parties making submissions were the Director General of Family and Community Services and the accused; it would seem that the Director of Public Prosecutions had no input. There are a number of matters that were raised for consideration in the present case that were not discussed by her Honour. In these circumstances, if I arrive at a different conclusion I do not believe that I am obliged to adopt her Honour's conclusion as a matter of judicial comity for the reasons given by Lindgren J in Undershaft (No 1) Ltd.

The principle of legality

39. The Crown’s submissions noted that the right to a fair trial is a fair trial according to law. The Crown referred (by way of example) to the sexual assault communications privilege in Ch 6 Pt 5 Div 2 Criminal Procedure Act which provides for significant limitations on access to and admissibility of counselling communications made by, to or about a victim or alleged victim of a sexual assault offence. Reference was also made to the restrictions on the admissibility of evidence of sexual experience or activity in s 293 of the same Act. Thus, Parliament has determined that an accused may be unable to rely upon material that may assist with his or her defence in certain circumstances.

40. Police v Dunstall [2015] HCA 26; 256 CLR 403 and Osborne v R [2014] NSWCCA 17; 238 A Crim R 417 were referred to as further examples of legislation impinging upon aspects of how an accused conducts his or her defence with there being no question of the accused being denied a fair trial according to law. The Crown's point is clear and there is no need to further dwell upon it.

41. In the original form of s 29(1)(d), reports (as defined in s 29(6)) were only admissible in a very limited class of proceedings. Prior to 1 January 2011 when amendments made by the 2010 Amendment Act took effect, s 29(1)(d) provided that reports (etc) were "not admissible in any proceedings (other than care proceedings in the Children’s Court, or any appeal arising from those care proceedings)". "Care proceedings" are (and were) defined in s 60 of the Act as proceedings under Ch 5 of the Act, pertaining to Children’s Court proceedings.

42. Accordingly, there was clear and unmistakable language used by Parliament when enacting s 29(1)(d) in its original form that reports were not admissible in criminal proceedings. The right of an accused to have a fair trial was quite unambiguously abrogated in that respect.

43. The 2010 Amendment Act replaced the original provision in s 29(1)(d) with the present list of proceedings for which there is an exception to inadmissibility. It expanded the list of exceptions by adding those in sub-paras (ii) to (v). Whether there is clear and unmistakeable language abrogating an aspect of an accused’s right to a fair trial in the expanded provision depends upon the construction of the provision.

Construction of s 29(1)(d) as a whole

44. The argument on behalf of the accused proceeded upon the basis that two words (“Supreme Court”) in s 29(1)(d) can be construed in isolation from their context. Moreover, counsel for the accused sought to characterise the Crown's argument as an attempt to read in some additional words. It was submitted, "the insertion of words that the Crown contends for is the Supreme Court 'in its Guardianship Division or in its division that deals with children and care proceedings', or something to that effect. I simply say that 'Supreme Court' means Supreme Court". (T10.32)

45. Confining the question of construction to just the words "Supreme Court" without regard to the context in which they appear is contrary to principle. Further, I do not understand the Crown to have suggested that it was necessary to "read in" words; a large part of the Crown's focus was upon the context in which the two words appear.

46. The context in which “Supreme Court” appears suggests that it cannot be read as broadly as the accused contends. Whilst the phrase “in relation to” is often given wide import, it is unclear why only the Supreme Court and the Tribunal would be included if the phrase was intended to cover all proceedings which involve children in any way.

47. There is some force in the Crown’s contention that “proceedings in relation to a child or young person” in s 29(1)(d)(iii) is not a description of criminal proceedings where a child or young person is the alleged victim, but is a description of proceedings which call for a determination concerning the welfare of a child or young person. However, I do not regard this as determinative.

48. Any doubt as to how broadly s 29(1)(d)(iii) should be read can be resolved with regard to extrinsic materials, which make it plain that the substitution of the present s 29(1)(d) provision by the 2010 Amendment Act was not intended to allow for admissibility in all types of proceedings in the Supreme Court.

49. The Explanatory Note to the Children and Young Persons (Care and Protection) Amendment Bill 2010 stated that Schedule 1 "extends the types of proceedings in which a report made in relation to a child or young person … will be admissible".

50. The Second Reading Speech of the Hon Michael Veitch (Parliamentary Secretary), New South Wales Legislative Council, Parliamentary Debates (Hansard), 24 November 2010 at 28283 included (at 28285):

"The bill introduces two important new law reforms which will improve the interface between the child protection jurisdiction and other Courts and Tribunals.

Clause [1] of the bill will enable child protection reports to be admissible in 'child welfare proceedings' before other Courts and Tribunals such as the Family Court, the Supreme Court, Administrative Decisions Tribunal, Victim's Compensation Tribunal and the Coroner's Court.

Allowing these reports to be considered by courts in cases involving children will provide important contextual information, to enable the courts to better determine what is in the best interests of a child or young person and to make fairer decisions.

The amendment includes an important proviso—that child protection reports will only be admissible in legal proceedings, provided that the identity of the reporter who makes the risk of harm report is not disclosed. The continued protection of the reporter will not put in jeopardy people's willingness to report children and young persons at risk of significant harm." (Emphasis added)

51. The intention of the legislature in amending s 29(1)(d) so as to extend the class of proceedings in which reports would not be inadmissible is clear. The proceedings where the relevant reports are not inadmissible were intended to be “child welfare proceedings”.

52. This legislative intent compliments (and explains) the grouping of different types of proceedings in s 29(1)(d). The common denominator in each of the courts or the Tribunal referred to in the five sub-paragraphs in s 29(1)(d) is that they may each be concerned with proceedings examining the care and welfare of children.

53. Sub-paragraph (i) is concerned with "care proceedings in the Children's Court", defined in s 60 as proceedings under Chapter 5 of the Act.

54. Sub-paragraph (ii) is concerned with "proceedings in relation to a child or young person under the Family Law Act 1975 of the Commonwealth". Such proceedings may concern consideration and determination of issues concerning the care and welfare of children.

55. Sub-paragraph (iii) is concerned with "proceedings in relation to a child or young person in the Supreme Court or the Civil and Administrative Tribunal". The Act (in Ch 16) provides an administrative review jurisdiction to the Tribunal in respect of certain decisions made under or for the purposes of the Act: for example, AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028. The Supreme Court has a supervisory jurisdiction in relation to the Tribunal. It also has the ancient parens patriae jurisdiction: TF v Department of Family & Community Services [2015] NSWSC 694. Accordingly, both bodies include in their jurisdiction proceedings involving consideration and determination of issues concerning the care and welfare of children.

51. Counsel for the accused submitted at the hearing that "it is not clear why the Supreme Court and the Civil and Administrative Tribunal are in the same [sub-paragraph]" (T19.10). What I have just said supplies the answer.

52. Sub-paragraph (iv) is concerned with "proceedings before the Civil and Administrative Tribunal that are allocated to the Guardianship Division of the Tribunal or are commenced under the Victims Rights and Support Act 2013". The functions of the Guardianship Division of the Tribunal include functions of the Tribunal under the Act: Sch 6 cl 3 of the Civil and Administrative Tribunal Act 2013 (NSW). The Commissioner of Victims Rights is concerned with aspects of the care and welfare of children where, for example, they are victims of crime or children of the victims of crime. The Tribunal has an administrative review function under Sch 3 of cl 3 of its Act.

53. Sub-paragraph (v) is concerned with "proceedings under the Coroners Act 2009". Examination of issues relating to the care and welfare of children may from time to time arise in Coronial inquests. For example, the Coroners Act provides in s 24(b) that a Senior Coroner has jurisdiction to hold an inquest into a death or a suspected death where it appears that the person was (or that there is reasonable cause to suspect that the person was), inter alia, "a child in respect of whom a report was made under Part 2 of Chapter 3 of the Children and Young Persons (Care and Protection) Act 1998 within the period of 3 years immediately preceding the child’s death".

54. It follows that "Supreme Court" in s 29(1)(d)(iii) cannot be a reference to the Supreme Court in all facets of its very wide jurisdiction. With regard to the Second Reading Speech in particular, a narrower meaning was intended. Criminal proceedings in this Court therefore do not fall within s 29(1)(d), even if the victim of the alleged offence was a child.

55. The contrary construction contended for by the accused would lead to an absurd result. That construction would have it that Parliament intended to allow for admissibility of reports in criminal proceedings that are in some way "in relation to a child or young person" in the Supreme Court but retain the pre-existing inadmissibility in such proceedings in all other courts, including courts where criminal prosecutions relating to events that have concerned a child or young person are more likely to be conducted: the Children's, Local and District Courts. Counsel for the accused's attempt to avoid such absurdity by characterising the omission of reference to other courts as "a mistake" (T11.29) cannot be accepted. It cannot be assumed that Parliament overlooked such an obvious issue if its intention was to include criminal proceedings in those proceedings that are excepted from inadmissibility.

Conclusion on the application of the principle of legality

61. As previously discussed, in its original form s 29(1)(d) unambiguously abrogated an aspect of an accused’s right to a fair trial by denying the ability to tender or otherwise use in evidence potentially relevant material. Nothing in this respect has changed when regard is had to the fact that the 2010 Amendment Act only extended the existing exception to inadmissibility to the same types of proceedings in other jurisdictions but not to any criminal proceedings.

Whether all of the material sought to be relied upon is caught by the terms of s 29(1)(d)

62. A related issue is whether all of the material produced under subpoena by Family and Community Services and upon which the accused would seek to rely in evidence at her trial is caught by the terms of s 29(1)(d). "Report" in that provision is a reference to that described at the beginning of s 29(1): a report “in relation to a child or young person, or a class of children or young persons”, made “in good faith to the Secretary or to a person who has the power or responsibility to protect the child or young person or the class of children or young persons”. "Report" is defined in s 29(6) to include a report under ss 24, 25, 27, 120, 121 and 122 of the Act. (Sections 120-122 provide for reports in relation to homeless children or young persons.)

63. What is rendered inadmissible (in proceedings other than the nominated proceedings or in appeals following from those proceedings) by s 29(1)(d) is "the report, or evidence of its contents".

64. The Crown characterised the documentary material the accused wishes to rely upon in the present proceedings as falling within a number of categories, including internal memoranda, case summaries, referrals to other services, affidavits, case management plans and so forth. The documents summarise, set out, refer to, reproduce in some detail, extract from, or discuss, what must be assumed to be the original record of the “report” made to Family and Community Services. Such documents must be regarded as “reports” or “evidence of the contents” of such reports.

65. If the Crown's characterisation is correct then all of the subpoenaed material would be rendered inadmissible in the accused's criminal trial. Whether that is so is not a point necessary for me to decide.

Conclusion

66. A report referred to in s 29(1), or evidence of its contents, is not admissible in criminal proceedings in the Supreme Court (or criminal proceedings in any other court).

Order

67. Pursuant to the terms of the conditional exemption under s 128(2) of the Criminal Procedure Act granted in these proceedings by the Acting Chief Justice of New South Wales on 15 August 2017 I make the following order:

The proceedings are remitted to the District Court of New South Wales.

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Decision last updated: 01 September 2017