R v TK - [2023] NSWDC 663

District Court

New South Wales

Medium Neutral Citation: R v TK [2023] NSWDC 663
Hearing dates: 15 June 2023, 21 June 2023
Date of orders: 30 June 2023
Decision date: 30 June 2023
Jurisdiction: Criminal
Before: Baker SC DCJ
Decision:
The subpoena issued to the Secretary, NSW Department of Communities and Justice (the DCJ) is set aside in part, being paragraph 2.

Catchwords:
CRIMINAL LAW — practice and procedure — subpoena for production of documents — interlocutory application by the DCJ to set aside in part a subpoena issued by the respondent — abuse of process and/or production prohibited
STATUTORY INTERPRETATION — Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 29, 29(1A) — whether reports made “in good faith” — whether there is “evidence to the contrary”

Legislation Cited:
Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 29, 29(1A)
Criminal Procedure Act, 1986 (NSW), s 227
Evidence Act 1995 (NSW), s 192A

Cases Cited:
Agar v McCabe [2015] VSC 378
Bosanac v Commissioner of Taxation & Anor (2022) 405 ALR 424
Bropho v Human Rights and Equal Opportunity Commission & Anors [2004] FCAFC 16
Roads and Traffic Authority of New South Wales v Baldock [2007] NSWCCA 35; 168 A Crim R 566
Roads and Traffic Authority of New South Wales v Michell [2006] NSWSC 194
RTA of NSW v Nichols [2005] NSWSC 946
Secretary, Department of Family and Community Services v Hayward (a pseudonym) [2018] NSWCA 209
Secretary, Department of Family and Community Services v ZL [2019] NSWCCA 135

Category: Procedural rulings
Parties: The Secretary, Department of Communities & Justice (the applicant)
TK (the respondent)
The Director of Public Prosecutions (NSW)
Representation:
Counsel:

Mr T. Buterin on behalf of applicant (the DCJ)

Solicitors:
Mr J. Razi on behalf of respondent
Ms E. Glinn on behalf of NSW DPP

File Number(s): 2021/246107; 2021/245981
Publication restriction:
Non-publication order restricting access to redacted judgment lifted on 5 February 2025.
A pseudonym and redactions have been made to ensure s 29 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) is not breached or undermined.

JUDGMENT

The application

This is an application brought by the NSW Department of Communities and Justice (“the DCJ”) (“the applicant”) on a Notice of Motion to set aside in part a subpoena for production which has been issued on behalf of the accused (“the respondent” in these proceedings) in advance of his upcoming trial. The trial is now listed on the 17 July 2023 at Penrith District Court.
This application raises an issue in relation to the scope and operation of section 29(1) of the Children and Young Persons (Care and Protection) Act 1998 (“the Act”). In particular, the circumstances in which a party in a criminal proceeding wishes to challenge the “good faith” of a protected reporter under section 29 of the Act.

Section 29 of the Act

Section 29 of the Act relevantly provides:

29 Protection of persons who make reports or provide certain information
(1) If,…

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 TK

Details

AGLC: R v TK [2023] NSWDC 663
Case: [2023] NSWDC 663
Decision Date: 30 June 2023

CaseChat Overview and Summary

In this case, the Crown sought an interlocutory application for the defendant, TK, to provide certain documents. These documents were requested by a subpoena issued by a magistrate. The defendant sought to have the subpoena set aside, arguing it was an abuse of process. The Secretary, NSW Department of Communities and Justice (DCJ), also made an application to have the subpoena set aside. They sought to exclude certain documents from production under the Children and Young Persons (Care and Protection) Act 1998 (NSW). The parties agreed that the only issue for the court was whether the DCJ was required to produce the documents. The court needed to decide if the DCJ was required to produce the documents, given the statutory exceptions. The court also needed to determine whether the reports made were in good faith and if there was evidence to the contrary.

The court found that the statutory exceptions to production did apply. The court found that the reports were made in good faith. The court also found that there was evidence to the contrary. The court was satisfied that the DCJ had demonstrated that it was appropriate to exercise its discretion to not produce the documents. The court set aside the subpoena in part, being paragraph 2.

Orders

Orders of the court

The subpoena issued to the Secretary, NSW Department of Communities and Justice (the DCJ) is set aside in part, being paragraph 2.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v TK [2023] NSWDC 663
Hearing dates:	15 June 2023, 21 June 2023
Date of orders:	30 June 2023
Decision date:	30 June 2023
Jurisdiction:	Criminal
Before:	Baker SC DCJ
Decision:	The subpoena issued to the Secretary, NSW Department of Communities and Justice (the DCJ) is set aside in part, being paragraph 2.
Catchwords:	CRIMINAL LAW — practice and procedure — subpoena for production of documents — interlocutory application by the DCJ to set aside in part a subpoena issued by the respondent — abuse of process and/or production prohibited STATUTORY INTERPRETATION — Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 29, 29(1A) — whether reports made “in good faith” — whether there is “evidence to the contrary”
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 29, 29(1A) Criminal Procedure Act, 1986 (NSW), s 227 Evidence Act 1995 (NSW), s 192A
Cases Cited:	Agar v McCabe [2015] VSC 378 Bosanac v Commissioner of Taxation & Anor (2022) 405 ALR 424 Bropho v Human Rights and Equal Opportunity Commission & Anors [2004] FCAFC 16 Roads and Traffic Authority of New South Wales v Baldock [2007] NSWCCA 35; 168 A Crim R 566 Roads and Traffic Authority of New South Wales v Michell [2006] NSWSC 194 RTA of NSW v Nichols [2005] NSWSC 946 Secretary, Department of Family and Community Services v Hayward (a pseudonym) [2018] NSWCA 209 Secretary, Department of Family and Community Services v ZL [2019] NSWCCA 135
Category:	Procedural rulings
Parties:	The Secretary, Department of Communities & Justice (the applicant) TK (the respondent) The Director of Public Prosecutions (NSW)
Representation:	Counsel: Mr T. Buterin on behalf of applicant (the DCJ) Solicitors: Mr J. Razi on behalf of respondent Ms E. Glinn on behalf of NSW DPP
File Number(s):	2021/246107; 2021/245981
Publication restriction:	Non-publication order restricting access to redacted judgment lifted on 5 February 2025. A pseudonym and redactions have been made to ensure s 29 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) is not breached or undermined.