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

1. 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.

2. 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

3. Section 29 of the Act relevantly 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 or criminal liability against the person making the report, 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. The basis upon which the applicant seeks to set aside the subpoena is that the production of the relevant documents is prohibited by virtue of section 29(1)(e) of the Act, and it would be an abuse of process to allow production of the material so protected. The DCJ also relies upon s 29(1)(f) of the Act which prohibited the documents being disclosed in the proceedings.

5. The respondent’s response is that section 29 of the Act only protects reports that are made “in good faith”, as set out in the chapeau of the subsection and the respondent seeks to challenge the “good faith” of the reporter.

Background to the application

The criminal charge

6. On [redacted] the respondent was arrested and charged with one count of sexual intercourse without consent. The complainant is his former partner, AW. The offence is alleged to have occurred on 2 January 2020.

7. On [redacted] the respondent was arraigned in this Court and pleaded not guilty. [Redacted]. That trial date was later vacated due to the unresolved issue with this subpoena.

The subpoena and notice of motion

8. On 17 October 2022 the respondent issued a subpoena upon DCJ seeking copies of all documents on a file held for the complainant including risk of significant harm reports, records, meeting notes, case notes, and safety assessments and risk assessments.

9. Paragraph two of the subpoena sought production of any reports made or contact with the DCJ by [redacted] BW in relation to the complainant, the respondent and the complainant’s three children.

10. On 25 November 2022 the DCJ filed this application seeking an order pursuant to section 227 of the Criminal Procedure Act 1986 (NSW) setting aside paragraph two of the subpoena. In support of the application the applicant relies on the affidavit of Alexander Christopher Cheong sworn on 24 November 2022. Mr Cheong deposed that paragraph two of the respondent’s subpoena falls within the terms of section 29(1)(e).

11. On 21 December 2022 the DCJ produced some documents in response to the subpoena that are not caught by section 29.

12. On 25 January 2023 a delegate of the Secretary of the DCJ certified pursuant to section 29(1A) of the Act that three identified documents are reports, or information relating to reports, to which section 29 of the Act applies. Two of those documents are Risk of Significant Harm Reports and one is a Non-Risk of Harm Report.

The section 192A advance ruling

13. This application was listed on 16 February 2023. On that date the respondent raised the issue as to the application of section 29 of the Act to the hearing of the subpoena proceedings and the matter was adjourned to 13 April 2023 for further argument. The respondent then sought an advance ruling pursuant to section 192A of the Evidence Act 1995 (NSW) on preliminary issues relevant to the determination of this application. On 6 March 2023 the respondent filed a series of questions for determination as to the advance ruling.

14. On 27 April 2023 her Honour Judge Payne answered those questions and determined that:

1. Either party to these proceedings can adduce evidence to demonstrate that the report was or was not made in “good faith” for the purposes of s.29(1). This also applies to the criminal trial itself, for example, a tendency application or in the course of the cross-examination of a witness;

2. In adducing any such evidence, either party can do so in a way that discloses the identity of the report-maker or discloses information from which the identify of that person can be deduced;

3. In these proceedings (not being proceedings within s29(1)(d) of the Act), where there is a challenge to whether the reports were made “in good faith”, the onus is on the DCJ to establish a report is made “in good faith”. Once that onus is discharged the onus falls on the respondent; and

4. The standard that must be established to show that a report was or was not made “in good faith” is “evidence to the contrary” (see: s 29(1A) of the Act). It need not be at the criminal or civil standard. What “evidence to the contrary is”, is to be determined having regard to the statutory context and the particular facts of this case.

15. Her Honour Judge Payne also ordered that the hearing of this application was to be heard in closed court and made an interim suppression order over the identity of any person who made a report within the meaning of s 29(1) of the Act and any information from which the identity of that person could be deduced in respect of the hearing.

The issue for determination

16. The respondent accepts that where there is a certificate signed by the Secretary of the DCJ that accords with s 29(1A), this triggers a factual presumption that the reports within the certificate are made in good faith “in the absence of evidence to the contrary”. The respondent also accepts that the Court should find that as a s 29(1A) certificate has been provided by the applicant, a presumption in favour of good faith has been raised and the onus has shifted onto the respondent to provide “evidence to the contrary”.

17. The respondent has adduced evidence in the form of documents and now contends that this is “evidence to the contrary” that BW’s reports to DCJ were made “in good faith”.

18. Therefore, the issue for determination on this application is: having regard to the text, context and purpose of this legislation, and in the context of a challenge as to the protected reports made “in good faith”, whether the evidence put before the Court by the respondent is “evidence to the contrary”.

The hearing and the evidence adduced

19. The application was heard on 15^th and 21^st June 2023 at Penrith District Court. The applicant filed a Court Book (Exhibit 1) that contained all of the relevant documents relied upon by both parties, including the subpoena (Tab 1), the evidence (Tabs 2-4), the submissions (Tabs 5-7), the legislation and Hansard (Tabs 8-9) and relevant cases (Tab 10).

20. The proceedings were heard in a closed court and subject to the interim suppression order. In addition to the written submissions, I also had the benefit of oral submissions from Mr Buterin, counsel for the DCJ and Mr Razi, solicitor advocate for the respondent.

21. In addition to the affidavit of Mr Cheong (Tab 2) the applicant tendered a copy of the certificate issued under s 29(1A) (Tab 4).

22. The respondent, in response, relies upon an affidavit of Jacklyn Dougan-Jones affirmed on 23 December 2022 (Tab 3) and Annexures A - J. The applicant objected to a number of parts of the affidavit of Ms Dougan-Jones and the Annexures on the basis of inadmissible hearsay or opinion evidence. I ruled on the admissibility of the evidence (see: T13-T21 15/06/23) and allowed in the hearsay evidence but subject to appropriate weight and disallowed those aspects of the evidence that were either inadmissible opinion evidence or more appropriately submissions.

23. The evidence set out in Ms Dougan-Jones’ affidavit and the Annexures comes from the respondent’s position on facts in issue in the trial proceedings, documents in trial proceedings and various assessment reports that were produced by DCJ.

Annexure B

24. The Crown case is set out in a Case Statement (Annexure B).

25. Briefly, the Crown case is that at that time of the alleged sexual assault the respondent and the complainant were in a relationship. The relationship lasted approximately 18 months between May 2019 and October 2020. For some of that time the respondent and the complainant lived in her family home with her mother, her father, her two brothers and her two daughters.

26. On [redacted] the complainant gave birth to her second daughter. On 2 January 2020 the respondent was at home with the complainant, her two daughters and the complainant’s brother, CW. CW was in the living room and the respondent was in their bedroom. The complainant came into the bedroom after having a shower. The complainant alleges that the respondent took off her towel and attempted to initiate sexual intercourse with her. The complainant said, “No”. The respondent pulled down the complainant’s underwear and pants. The complainant said, “Stop. No. I’m still bleeding.” The respondent asked the complainant to have sex with him and she refused. The respondent then pushed the complainant against a cupboard and held on to her. The complainant repeated “stop” multiple times and “Stop I am bleeding”. The respondent then inserted his penis into her vagina and the complainant continued to say “stop”. After 5 minutes the respondent withdrew his penis, ejaculated into his hand and then went into the bathroom. The complainant got dressed and went outside for a cigarette.

Annexures H, I and G

27. On this application, the respondent relies upon an inconsistency in the tendered documents between the complainant’s account of when she first made her complaint of sexual assault to CW and also a possible inconsistency between statements made by BW and the complainant about when BW first knew about that complaint.

28. In a later police statement dated 10 February 2021 (Annexure “H”), the complainant said that later on the night of 2 January 2020 she was out the back of the house with CW and he started to ask her why she was saying “No” to the respondent and telling him to “Stop” earlier in the day. The complainant said she told CW that the respondent had forced her to have sex with him but can’t recall the exact words she used. She then said in her statement that, “I think it was the next day that mum and dad asked TK to move out. They didn’t know about TK forcing me to have sex with him the day before, I think they just had enough of TK and I arguing.”

29. CW provided Police with a statement dated 20 February 2020 (Annexure “I”). He told Police that on the night of the 2 January 2020 he heard the complainant in her bedroom say, “No” and “Stop”. The next day he said he heard yelling back and forth between the complainant and the respondent and the complainant say, “You practically raped me the night before.” CW said he heard the respondent say, “You can’t rape anyone in a relationship”. CW walked out of his bedroom and spoke to the respondent about what he had just said. CW then said he spoke to the complainant and asked her if she was alright. The complainant said, “Nothing happened it is alright don’t worry.” He told the complainant that he was there if she wanted to talk. He saw the complainant was crying. He left the bedroom and rang BW on the mobile phone and said to BW, “I think something has happened to AW. I think TK might have raped her.” CW said that BW was shocked and asked, “How, Wh..” He then told her that TK had told him, “That you can’t rape someone in a relationship.” CW then said in his statement that a couple of months later around the middle of the year the complainant said to him, “You know the fight that me and TK had where (I) said, you practically raped me?”. CW said, “Yeah” and the complainant said to him, “He did force himself on me. I did say no because (I) was still healing from the pregnancy. I tried to push him away where he grabbed my arms and pushed them down and did it.” CW then said, “I knew that something happened. Why did you lie to me?” The complainant then said to him, “When you’re my little brother I didn’t want you to know these things. I was scared no one would believe me.”

30. Approximately a day after the alleged sexual assault, the complainant’s parents asked the respondent to leave the house due to ongoing arguments between him and the complainant.

31. About 10 January 2020 the complainant moved [redacted] with her two daughters to live with the respondent and his aunt. Approximately two weeks later the complainant and her two daughters returned to her parents’ home. The complainant remained in a relationship with the respondent, however they only saw each other once a week when she would stay with the respondent at his place.

32. Annexure B at [16] states, “At around this time, BW contacted the complainant’s DCJ case worker and told her about the complainant’s disclosure of sexual abuse on 2 January 2020”. I note that the applicant disputes an aspect of a DCJ document that goes to this issue.

Annexure G - DCJ field assessment report on 11 January 2020

33. That document is Annexure G – Field Assessment Report of Katarina Bejelic of 11 January 2020 at page 15 of 25. Within this report there is a case note that reads, “The mother has disclosed to myself and her brother that her partner recently forced himself upon her.” The respondent submits that “myself” is BW. Whereas the applicant submits that a plain reading of the notes supports it being the caseworker and the author of the report. In the context of the whole report, I find that “myself” is BW.

34. The relevance of this report is that the respondent relies upon this document to raise a contended inconsistency between the complainant, who stated that as at the 3 or 4 January 2020 (when her parents asked the respondent to leave the house) BW did not know of the allegation, and BW’s statement to DCJ on the 11 January 2020 that the complainant had told BW and her brother about the alleged sexual assault.

35. On 11 January 2020 DCJ case workers also spoke to the complainant and the respondent and case notes were made of that conversation. Those two pages of notes are in Annexure G. The respondent relies upon these notes as being relevant to the dynamics between the complainant and BW and as being consistent with his case theory that the complainant has lied, motivated by a fear of BW making false reports to DCJ.

Annexures H and D

36. In March 2020 the complainant discovered she was pregnant with the respondent’s child. On [redacted] the complainant gave birth to a son.

37. On 20 December 2020 the complainant contacted police in respect of threats the respondent was making to her. At this time, she disclosed to Police the sexual assault allegation of 2 January 2020. The allegation was outlined in her police statement (Annexure H).

38. Leading Senior Constable Jason Hattch took the complainant’s statement. In his statement dated 23 October 2022 (Annexure D), LSC Hattch wrote that he spoke to the complainant on 20 December 2020 and the complainant disclosed that the respondent had sexually assaulted her. LSC Hattch also wrote that, “when speaking with the victim she appeared to be looking at [redacted] BW a lot during the questioning who was helping the victim with her timeline, which at the time seemed like the victim was being forced to report the matter but may have just been shy with speaking to police about the matter.”

Annexure E - The respondent’s case and the tendency evidence

39. Ms Dougan-Jones in her affidavit affirms that the issue in dispute at the respondent’s trial is consent and that an ancillary issue in the trial will be the motive behind the complaint. Related to this issue of motive the respondent has served on the prosecution a notice to adduce tendency evidence (Annexure E). The facts said to be in issue to which this tendency relates are set out at [11] of Ms Dougan-Jones affidavit. They include whether the complainant is motivated to make a false complaint out of fear and pressure by reports to the DCJ child protection hotline by BW. The tendency sought to be proved is the tendency of BW to use reports to the DCJ Child Protection Hotline as a means to exercise control and influence over the complainant in certain life choices she makes and to have a particular state of mind, namely to perceive decisions made by the complainant as to parental and life choices that differ from BW’s as a basis to report the complainant to the DCJ child protection hotline. The substance of the tendency evidence is set out in the tendency notice and at [14] of Ms Dougan-Jones’ affidavit.

Annexure F - The respondent’s assertion in the text message

40. The respondent also relies on a document (Annexure F) that contains assertions he has made that reports to the DCJ by BW were not made in good faith.

41. On 27 August 2021 police attended the respondent’s home and left a business card asking him to contact them. Police also left a similar message on his voicemail. Later that day Police call the respondent’s mobile and spoke to him. The respondent said he would call them back.

42. At 5.10pm on that day the respondent and the complainant spoke on the phone. The respondent asked her why the police were looking for him and he said, “[redacted] BW’s a fucking dog. Cause BW [redacted]…everything you write down you do not want to do…I don’t care you’re recording it…I don’t care. I really don’t care. I have …you’ve been setting me up from day dot AW. Ok. I have proof I have sex. I have videos of me and you having sex…non consent.”

43. At 6:45pm on that same day the respondent sent the complainant a text message. This message is at Annexure F. The applicant objected to this document on the basis that it is hearsay. It was admitted, however due to the remote hearsay therein it was admitted subject to it being given appropriate weight. That text message reads:

“[Redacted] BW puts every fucked up idea in your head AW you even talk exactly like BW now and no AW you could’ve left anytime and never come back [redacted] you could’ve asked ur parents to kick me out but yet no how the fuck do I control someone in there own house you contradict yourself AW I didn’t do what your accusing me of yes I was a pest that day and was horny I tried you said no I tried again u said no I tried again u said when I say stop, stop then cause CW heard u say get off you let him make a story up and [redacted] BW forced u to run with this story as BW is the real person who controls you as you’ve even admitted to me you are scared of what [redacted] BW can do to u as BW has no worries about reporting you to facs when u hadn’t done a thing wrong so just pull ya head and u will get a cent off me until you pull ya head in ya compulsive liar.”

Summary of the evidence relied upon by the respondent

44. Mr Razi in his written submission (at [25]) has summarised in a table the evidence the respondent relies upon. That evidence is said to fall into four categories:

1. The outline of the defence case at trial being an assertion that the complainant has lied motivated out of fear of reports to the DCJ by BW that have not been made in good faith. The respondent relies upon the tendency evidence to support this assertion;

2. An assertion by the respondent in the text message (which is part of the Crown brief) that BW has made reports to the DCJ that were not made in good faith;

3. Evidence of the dynamics of the relationship between the complainant and BW being consistent with the defence case theory as to the reports. In other words, evidence of consistency but not evidence that is capable of being conclusive; and

4. Evidence of the report of 11 January 2020 of BW providing the DCJ with either dishonest or misleading information or in the alternative, evidence of an inconsistency between the complainant and BW on the subject matter of the sexual assault.

45. The respondent relies upon the totality of this evidence but with particular attention on the text message and the 11 January 2020 report as “evidence to the contrary” that the three reports made by BW to DCJ on 2 January 2020, 11 January 2020 and 13 March 2020 (Tab 4) were made in good faith.

46. The respondent’s submission is that this evidence rebuts the presumption of “good faith” in section 29(1A) and the protection under section 29. The applicant’s submission is that neither individually nor collectively does this evidence amount to “evidence to the contrary”.

47. In order to determine if the evidence adduced is “evidence to the contrary” that the reports were made in “good faith”, it is necessary to consider what the standard or requisite weight of “evidence to the contrary” is having regard to the context of the provision.

Section 29 – The text, context and purpose

48. It is important to start with the statutory text. The text of section 29 of the Act has already been set out. Section 29 falls within Part 2 of Chapter 3 of the Act. This Chapter contains provisions in respect of requests for assistance and reports. Part 2 deals with reports about a child or young person at risk of significant harm and prenatal reports about a child that may be at risk of significant harm after birth (ss 24 and 25).

49. Section 29 makes provision for the protection of persons who make reports under ss 24, 25, 27, 120, 121 and 122 of the Act.

50. However, the statutory text must be considered in its context and also with regard to its purpose. Context should be considered at the first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and also if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected. Also, if a provision could have more than one meaning, a construction that promotes the purpose or object of the Act is to be preferred to a construction that would not promote that purpose or object.

Appellate consideration - Hayward and ZL

51. The text and purpose of section 29 has been considered at an appellate level by both the Court of Appeal and the Court of Criminal Appeal.

52. In Secretary, Department of Family and Community Services v Hayward (a pseudonym) [2018] NSWCA 209, the Court of Appeal considered the legislative history of section 29 and the proper construction of the section and stated at [61]:

“The text of s 29 and the legislative history of the provision show that the legislative purpose was to protect the identity of the maker of a report of risk of significant harm, in addition to, and to a greater extent than, the contents of the report. The reason for protection of identity identified in the extrinsic materials was the chilling effect that inadequate protection could have on the willingness of people to make reports of child endangerment. Such reports were seen to be critical to the object of ensuring the “safety, welfare and well-being” of children as provided for in s 8 of the Care and Protection Act.”

53. The Court of Appeal at [71] also noted the following in relation to s.29(1)(e):

“Turning to s 29(1)(e), two critical features should be noted. First, the purpose of the provision is to remove compellability both with respect to production of the document (the report) and with respect to disclosure of its contents in evidence. Secondly, and by way of contrast with par (d), it contains no exceptions. Indeed, while assuming that evidence may be given of the contents of a report (consistently with the exceptions in par (d)), it nevertheless denies compellability. To read an implied limitation into the phrase ‘any proceedings’ in par (e) would not only involve giving the same phrase in closely related provisions different meanings, but would render the relationship between the provisions incoherent.”

54. When ultimately considering the construction of section 29(1) of the Act the Court of Appeal concluded at [90] and [92]:

“[90] Accepting that the principle of legality was engaged, the language of s 29(1)(e), read in its context, and taking into account the legislative history of the section as a whole, cogently demonstrates that the legislature intended that the unqualified prohibition on the compelled production of a s 24 report should apply to criminal proceedings. Further, the exception in s 29(1)(f)(ii) to the protection of the identity of the maker of a report was limited to ‘proceedings relating to the report’, being those proceedings specifically identified by the legislature in s 29(1)(d). The legislature has chosen to override any interest an accused person may have in ascertaining the identity of the maker of such a report, so as to protect the interests of vulnerable children as a class.

--

[92] The legislature was concerned to specify in s 29(1)(d) of the Care and Protection Act the types of proceedings in which a report or the content of a report could be admitted in evidence. The clear wording of s 29(1)(e) forbids the use of compulsory process in ‘any proceedings’ to compel production of a report of a risk of harm to a child, and the giving of evidence about the contents of a report. To imply an exception for criminal proceedings against a person accused of mistreating a child would be to subvert the clear and uncontested purpose of the section. The principle of legality does not require such an implication.”

55. Section 29 was also considered by the Court of Criminal Appeal in Secretary, Department of Family and Community Services v ZL [2019] NSWCCA 135 where Hamill J (with whom Hoeben CJ at CL and White JA agreed) observed at [36]:

“It is clear that the purpose of this part of the legislation is to ensure that people who are aware of circumstances that might suggest that a child is at risk of significant harm feel free to come forward and make reports and allegations to the Department. They should be able to do so without fear that their identity, or the details of what they say, might be disclosed to the possible perpetrators of child abuse or to anybody else. It is legislation calculated to protect the identity of people sometimes described as ‘whistle-blowers’. It is in absolute terms and is prescriptive.”

56. As is clear from the appellate consideration of section 29, the statutory context as well as the legislative history, text and purpose of the section are such that there is a necessary strictness to be applied to an interpretation of the terms of the section.

57. Whilst both the applicant and the respondent agree that a strict approach to a construction of the protective purpose of the section is required, the parties have made different submissions on the effect of that strictness on the standard or weighting of “evidence to the contrary” in s 29(1A).

58. The applicant submitted that this strictness means that in the context of this legislation the weighting of “evidence to the contrary” should be greater. The respondent submitted that because of this strictness and the difficulties presented to challenging that protection, the weighting of “evidence to the contrary” should be adjusted to “take into account the legislative framework”.

59. Mr Razi, on behalf of the respondent also submits that it is important for the court to focus on the operative effect of the sub-provision section 29(1A) and not the ultimate operation of section 29. Mr Razi submits that the protection under section 29 can be claimed at two stages. The first stage is that which section 29(1A) gives rise to, namely, by engaging the protection by way of the presumptive clause in s 29(1A). That presumption allows for the DCJ to claim protection simply by way of a certificate. However, where evidence to the contrary is raised the claim is overcome. Mr Razi submits that it then remains open for the DCJ to raise further evidence that the relevant reports were made in good faith and to satisfy the court on the balance of probabilities that the reports were made in good faith. Mr Razi submits this second stage could include the court receiving confidential affidavits or evidence to ensure protection of the reporter.

60. Mr Razi further submits that on this application the Court is not deciding in any ultimate way whether the protection should be afforded to the reporter or whether these specific reports have been made in good faith. He submits that all that this Court is deciding is whether the DCJ can claim this protection at this lesser evidentiary standard and without actual evidence. For that reason, the respondent submits the protective purposes of the section are not undermined by interpreting the words “evidence to the contrary” as submitted by the applicant.

61. Mr Buterin takes issue with this and submits that this differentiation is in effect illusory and that if the Court were to adopt the approach that evidence of the nature adduced by the respondent is sufficient to be “evidence to the contrary” that it would have the effect of watering down the protection of the provision, and this would subvert the intention of the legislation.

Section 29

“Good faith”

62. The phrase “good faith” in the context of section 29 does not appear to have been previously considered. The parties have referred the Court to considerations of the phrase in the context of contract law, public law and tort law.

63. Mr Buterin submits (and I agree) that it is doubtful that the definitions found in these areas can be directly applied to legislation whose objects are the “safety, welfare and well-being” of children and young persons.

64. Mr Razi has drawn the Court’s attention to the consideration “good faith” in the decision of Bropho v Human Rights and Equal Opportunity Commission & Anors [2004] FCAFC 16. In Bropho the Federal Court at [83]-[95] considered the various legislative contexts in which the phrase can be found and at [93] stated, “in the statutory setting a requirement to act in good faith, absent any contrary intention express or implied, will require honest action and fidelity to whatever norm, or rule or obligation that statute prescribes as attracting the requirement of good faith observance.”

65. Mr Razi submits that in the present context, this would be understood as honest reporting and reporting that was done in the spirit of the purpose of the provision, that is in relation to the risk of significant harm to a child or a young person, and not for some other purpose.

66. To assist in considering the meaning of this phrase, Mr Buterin referred the Court to the following remarks in the relevant second reading speech:

“…A report will be an exempt document under the Freedom of Information Act. However, the various protections offered will only apply where a report has been made in good faith. A person who knowingly makes a false report with the intent of causing injury or harm to the reputation of another person will not be protected from legal liability for defamation or other legal action…”

67. Regard may also be had to the ordinary meaning of the phrase “made in good faith” which could be said to be something “made genuinely” or something “done on the basis of a belief honestly held”.

68. After having regard to the context and purpose of section 29, as well as the second reading speech, I agree with Mr Buterin’s submission that the determination of whether a report is made by a person other than “in good faith” is best resolved by asking whether the report was “knowingly made to be false”.

The meaning of “evidence to the contrary”

69. As determined by Payne DCJ the phrase “evidence to the contrary” is neither the criminal nor civil standard of proof and this phrase is to be determined having regard to the statutory context.

70. The phrase “evidence to the contrary” in the context of section 29(1A) also does not appear to have been previously considered.

71. Both parties have referred the Court to the Victorian Supreme Court case of Agar v McCabe [2015] VSC 378 in which Zammit J in the context of a presumption in favour of the accuracy of prescribed road safety camera absent “evidence to the contrary” said at [21]-[23]:

“In DPP v Cummings (‘Cummings’), Kellam J discussed a definition of evidence to the contrary in the context of proceedings where the respondent had sought to rebut a statutory presumption of the facts and matters set out in a certificate under s 57(3) of the RSA in relation to the taking of a blood sample. Kellam J found that the phrase ‘to the contrary’ meant ‘to the opposite effect’, and that it ‘must at least be accepted by the tribunal of fact as having some weight’. Slight or unconvincing evidence would not be enough to constitute evidence to the contrary.

This interpretation has subsequently been accepted in cases dealing with speeding offences and certificates issued pursuant to ss 83 and 83A of the RSA, with T Forrest J adopting the definition in McCabe, and McDonald J following this approach in Petrov.

As per Kellam J’s approach, two separate elements must be made out to establish evidence to the contrary, with the first element being that there is evidence to the opposite effect of the matters set out in s 83A of the RSA, and the second element being that the tribunal of fact accepts that such evidence has some weight.” (emphasis added)

72. Both the applicant and the respondent have submitted that the Court would approach the words “evidence to the contrary” in the context of s 29(1A) in the same way as identified by Kellam J. That is, there must be evidence to the opposite effect and the evidence must be accepted as having some weight.

73. However, that still leaves unanswered what weight is necessary for the evidence to establish to the opposite effect that the reports were made in good faith.

Respondent’s submissions on the standard and the evidence

74. Mr Razi submits that in the protective context of section 29 “having some weight” should be adjusted to allow even “slight” evidence as capable of amounting “to evidence to the contrary” provided it is not unconvincing.

75. Mr Razi also relies upon the High Court case of Bosanac v Commissioner of Taxation & Anor (2022) 405 ALR 424 where, when considering presumptions of law and the words “absence of evidence to the contrary”, Gordon and Edelman JJ said at [102] “once evidence is adduced to address the issue in dispute, the presumption has no ‘superadded weight’. Once that evidence is led, ‘even weak evidence…must prevail if there is not other evidence to counterbalance it’”.

74. Mr Razi further submits that the applicant’s reliance upon the certificate is not capable of doing anything more than triggering the presumption in s 29 (1A), and in the context of this application even “weak evidence” would be sufficient to amount to “evidence to the contrary”.

75. Mr Razi submits that this is also reflective of the fact that this phrase is qualitative and not quantitative, and the assessment is not about how much evidence there is but rather whether there is evidence which due to its overall nature and quality, is of opposite effect to the presumption of good faith raised.

Respondent’s submissions on the evidence

78. Mr Razi at [55]-[60] of his written submissions submits that having regard to an adjusted weight of “evidence to the contrary” and after considering the four categories of evidence in totality, the Court would find that this evidence points to two opposite effects, namely:

1. That BW made a dishonest report to the DCJ on 11 January 2020; and

2. That BW made the risk of harm to a child reports in the certificate other than “in good faith”, namely to control the complainant.

Applicant’s submissions on the standard and the evidence

79. The applicant submits that in the context of this legislation, “some weight” must be more than slight evidence and cannot just be evidence that “might suggest” or give rise to “a possibility” that a report was not made in good faith.

80. The applicant further submits that the obiter dicta in Bosanac is of little assistance due to the different context in which that discussion took place – i.e., in the context of the “ancient” and “anachronistic” presumption of a resulting trust, and accordingly has no application to the present circumstances.

81. In place the applicant relies upon two cases in support of their position. Both cases considered the phrase “evidence to the contrary” in the context of what were described as speed camera cases. The relevant NSW provision permitted into evidence photographs produced by speed cameras and certificates certifying the accuracy and reliability of those camera. RTA certificates were treated as prima facie evidence or founding a statutory presumption that was subject to the qualification, “unless evidence to the contrary is adduced.”

82. In RTA of NSW v Nichols [2005] NSWSC 946 Hoeben J (as his Honour then was) considered an appeal from the Local Court concerning whether the Magistrate erred in holding that there was “evidence to the contrary” rebutting the reliability and accuracy of the speed camera and dismissing the charge. The Magistrate had heard evidence from a camera operator that “it was known that cameras go off-line particularly in times of thunderstorms”. However, the operator could not say whether there was any malfunction in the device. On the basis that a speed camera can malfunction the Magistrate dismissed the charge.

83. Hoeben J at [21]-[22] said:

“The fact that at some time unspecified in the past the camera recording device under consideration had a tendency to malfunction during a thunderstorm and that at some unspecified time in the past other operators had attended to that device could not ever amount to ‘evidence to the contrary of the matters shown or recorded on the photograph’. To do so the evidence would have to be much more specific as to any or all of those matters (see [4] hereof). At the very least there would need to be some evidence of a thunderstorm and an actual malfunction at some time after 1 June 2004 (being the date of the subs 47(5) testing) and before 12 June 2004. The inability of Mr Roberts to say one way or the other that there had been such a malfunction could never amount to such evidence.

There was no evidence before her Honour that either device was not accurate or reliable. The certificates in respect of the testing before the alleged offence, which was in the period prescribed in each case, was evidence of their accuracy. The evidence upon which her Honour relied went no higher than to establish that in the case of the camera recording device there was a possibility of a malfunction in a thunderstorm. There was no evidence of any thunderstorm nor of any malfunction between 1 June and 12 June 2004.”

84. The following year Adams J took a more flexible view of the meaning of “evidence to the contrary” and the probative value required in Roads and Traffic Authority of New South Wales v Michell [2006] NSWSC 194.

85. Shortly after these two cases this phrase received the attention of the Court of Criminal Appeal in Roads and Traffic Authority of New South Wales v Baldock [2007] NSWCCA 35; 168 A Crim R 566. In that case, Spigelman CJ (Bell and Howie JJ agreeing), said (at [35] – [36]):

The reference to “evidence to the contrary” in s 47(3)(b) must, in my opinion, be evidence to the contrary of matter recorded on the photograph. That directs attention to the “speed as measured” not to the “speed” itself. Accordingly, I agree with the Appellant’s submission that the reference to “evidence to the contrary” is directed to evidence concerning the accuracy of the record, not to the accuracy of the speed measured by the speed measuring device.

In my opinion, this interpretation better serves the purpose of protecting the safety of the community by facilitating prosecutions for breach of speed limits, in the manner envisaged in the two Second Reading Speeches set out above. I can see no purpose of the statutory scheme that is served by adopting an interpretation which, to use the examples of Adams J in Michell supra, would result in a section facilitating the tender of technical evidence being displaced by evidence that is “slight or unconvincing” ([15]) or even evidence which is “disbelieved” ([16]). I agree with the observations of Kellam J in Director of Public Prosecutions v Cummings [2006] VSC 327 esp. at [35].

86. The applicant relies upon these remarks in Baldock to illustrate the appropriate interpretation of the phrase “evidence to the contrary” and the need to have regard to the nature of the particular legislation and its purpose.

87. The applicant recognises the different legislation involved in these cases but submits that the approach taken in Nichols has direct application to this case in assessing the respondent’s assertions, case theory, inconclusive family dynamics and suggested inconsistencies between the testimony of witnesses. The applicant submits in effect that the respondent seeks to rely on their own version of a “possible” (but unproven) thunderstorm to rebut the presumption in this application.

88. Ultimately, the applicant submits that none of the respondent’s categories of evidence amount to evidence to the contrary that the relevant reports are made in good faith.

Determination

89. This application raises an interesting and not previously considered question of the applicable standard or weight necessary for evidence to establish to the contrary that reports, to which section 29 of the Act applies, are not made in good faith.

90. It is common ground that there must be “some evidence” that will show to “the opposite effect” that the relevant reports were not honestly made. It is also common ground that the legislative history, text and purpose of section 29 results in a more restrictive interpretation of the provision.

91. The applicant submits that in light of this statutory context, the evidence required must be of a greater weight. The respondent submits that it should be less and can include “slight” or “weak” evidence and that the purpose and operative effect of s 29(1A) requires a much less onerous test be imposed.

92. Ultimately, having carefully considered the four categories of evidence, I find that I do not need to reach a final conclusion on the correct test. Whether the test is as high as submitted by the applicant or as low as proposed by the respondent, on either basis the evidence relied upon by the respondent is insufficient to establish to the contrary the reports were made in good faith.

93. That is because regardless of the standard of proof, “some evidence” must at a minimum be shown to be real or relevantly probative or carry some weight. It must, to some extent, show that the three reports made by BW were not made in good faith. I find that neither individually nor collectively does the evidence amount to evidence to the contrary and rebut the presumption of good faith.

94. The first category of evidence includes the respondent’s case theory, the proposed tendency evidence and arguments to be advanced concerning the complainant’s motive. These are no more than assertions of what are said to be issues that will be contested at trial. Any evidence that underpins those arguments lacks the quality or function of demonstrating that the relevant reports were not honestly made.

95. The second category is a text message sent by the respondent to the complainant that BW has forced the complainant to “run with this story” as he believes BW controls the complainant, because the complainant has previously told him that she believes BW is not concerned about reporting the complainant to DCJ when the complainant had not done anything wrong.

96. I do not consider this to be evidence to the contrary that BW made the reports to DCJ in good faith. In particular, because of its obvious limitations due to it being remote hearsay and a self-serving assertion made by the respondent. I do not consider this evidence to be even sufficient to amount to “slight” or “weak” evidence that BW made the three reports knowing them to be false.

97. The third category is evidence of the dynamics of the relationship between the complainant and BW and said to be consistent with the respondent’s case theory. The respondent relies upon this as evidence that can only show consistency but is incapable of being conclusive. Again, this evidence, in combination with the other evidence, is insufficient to show that the relevant reports were not made in good faith.

98. The fourth category is the difference between the complainant’s statement that as at the 3^rd or 4^th of January 2020 she had not complained to [redacted] BW about the alleged sexual assault and BW’s statement to DCJ on 11 January 2020 that at that time the complainant had disclosed the sexual assault to BW. The statement by BW has not been shown to be either dishonest nor misleading. Given the different dates of the statements and the passage of a week, these two statements have also not been shown to be inconsistent. Given the asserted controlling nature of the relationship between BW and [redacted] the complainant and the fact that CW told BW [redacted] on the 3rd January that he believed that the respondent had sexually assaulted the complainant, this difference appears to be explicable. In any event it is not evidence to the contrary that the relevant reports made by BW were made in good faith.

99. I have considered all of the evidence relied upon in the affidavit of Ms Dougan-Jones and the Annexures and find that they do not amount to evidence to the contrary and are not sufficient to rebut the presumption of good faith and overcome the protection of section 29 of the Act.

100. Order 1 sought in the applicant’s notice of motion dated 25 November 2022 is granted.

Orders

101. Set aside in part (being paragraph two of the schedule) the subpoena for production issued on behalf of the accused on 17 October 2022 to the Department of Communities and Justice and returnable on 19 October 2022.

Decision last updated: 05 February 2025