Re Helen
[2013] NSWSC 1022
•19 July 2013
Supreme Court
New South Wales
Medium Neutral Citation: Re Helen [2013] NSWSC 1022 Hearing dates: 19 July 2013 Decision date: 19 July 2013 Jurisdiction: Equity Division - Protective List Before: White J Decision: Refer to para [16] of judgment.
Catchwords: PROCEDURE - contempt, attachment and sequestration - contempt - statements made in court that could potentially constitute contempt or perjury - statements made in the course of proceedings in protective jurisdiction subject to confidentiality orders - variation of confidentiality orders - disclosure of documents to allow Attorney-General to consider prosecution Cases Cited: Re Thomas [2009] NSWSC 217
Re Helen [2010] NSWSC 1560Category: Principal judgment Parties: Director-General, Department of Family and Community Services (Plaintiff) Representation: Counsel:
M England (Plaintiff)
A Jones (Child)
Solicitors:
Crown Solicitors Office (Plaintiff)
File Number(s): 2010/119429
Judgment
HIS HONOUR: These proceedings concern the welfare of the young person for whom the Minister has parental responsibility until she attains the age of 18.
On 13 May 2010, Ward J, for reasons she then gave, made orders the effect of which was to authorise the Minister and the Director-General to detain the young person in secure premises. Those orders were made in the exercise of the Crown's parens patriae jurisdiction and having regard to the matters determined by Brereton J in Re Thomas [2009] NSWSC 217 (see Re Helen [2010] NSWSC 1560). Those orders have been periodically reviewed by this Court.
On 14 June 2013 an application was made to me for the issue of subpoenas to require the attendance of Helen's father, his current partner, that partner's niece and that niece's partner for them to give evidence as to the current whereabouts of Helen. The application was prompted by the fact that Helen had run away on 28 May 2013 and that grave concerns were held for her welfare. Helen is a type 1 diabetic. She is dependent on regular injections of insulin and needs to monitor her blood glucose levels. There have been previous instances in which Helen has absconded and where she has been admitted to hospital as result of hyperglycaemia and its consequences. Her treating endocrinologist has given evidence and reports to the effect that Helen is at risk of dying if she does not receive the regular and appropriate injections of insulin.
One of the reasons for there being serious concern for Helen's safety was that it was understood that the insulin Helen took with her when she absconded was only enough to have lasted a few days. There are also serious concerns for Helen's welfare arising from reports she has made of sexual assault on other occasions on which she has absconded.
On 14 June 2013 in the further exercise of parens patriae jurisdiction I issued subpoenas to the four persons referred to previously requiring their immediate attendance to give evidence concerning the whereabouts of Helen. Those subpoenas were served in the course of the day on Friday 14 June and the four persons concerned attended court that afternoon and evening and were questioned concerning their knowledge of Helen's whereabouts.
The effect of their evidence was that none of them had any knowledge of Helen's current whereabouts. In some cases two of the individuals had seen Helen in the course of the previous week. Helen's father said that he had received a number of telephone calls from Helen and had had some Facebook contact, but none of that contact was recent. He was questioned about some insulin that had been in his and his partner's fridge for about 12 months and was there on 31 May when Helen's case worker Ms Moore visited him, but was missing four days later. He said that he put that insulin in the garbage because it was just about out of the expiry date.
On 14 June after each of the individuals in question had given evidence, I made orders, which varied in detail, but the effect of which were that if they were contacted by Helen, or if they had any other communication with her or with any other person as a result of which they received any information as to Helen's whereabouts, they were immediately to telephone a specified individual, either a case worker or a police officer, on numbers they had, to convey such information as they then had about Helen.
According to an affidavit of Ms Moore that has been read today, she received a telephone call on 15 June (that is, the Saturday the day after evidence was taken from the four individuals) from Helen's sister, which conveyed some information about Helen's whereabouts. It appears also that on the evening of Saturday 15 June Mr Barry, a manager/case worker from Metro ISS, received a reverse charges telephone call from Helen herself. As a result of that call Helen was retrieved late in the evening of Saturday 15 June. Helen was taken to hospital where she was diagnosed as suffering from hyperglycaemia due to "subtherapeutic insulin use". She was admitted to hospital in the early morning of 16 June and released the same day.
Ms Moore deposes to meeting with Helen on 19 June at which time Helen conveyed information as to her movements prior to and on 15 June. She also deposes to having been given information by Helen as to her having obtained insulin from her father.
If Ms Moore has correctly recorded what she was told by Helen and if what Helen said was correct, there is a prima facie case that three of the individuals concerned committed perjury and have been guilty of contempt of court in relation to the evidence that they gave on 14 June, and in the case of at least one of the individuals of his having breached an order made on 14 June requiring him forthwith to telephone a relevant person with information about Helen's then whereabouts.
The possible offences revealed, if committed, I think should be regarded as serious, having regard to the concerns that were held for Helen's safety. I propose to refer the papers to the Attorney-General for the Attorney-General to consider whether any further investigation should be conducted and whether any proceedings should be commenced against Helen's father, or the niece of the father's partner, or the partner of that niece in relation to possible charges of perjury or contempt of court.
For this purpose it is proper to vary the orders that have been made from time to time prohibiting the disclosure of the evidence that has been provided to the Court in connection with the ongoing review of the orders granting leave to the Director-General to detain Helen in secure premises. I think the appropriate order is to give leave to the Director-General and those acting on behalf of the Director-General to disclose to the Attorney-General or to any police officer or other investigating authority any of the affidavits or reports prepared in connection with these proceedings, that the Director-General or any person acting on his behalf considers appropriate for the purpose of an investigation as to whether any offence has been committed or whether any proceedings should be brought by or against any of the four individuals who gave evidence before me on 14 June 2013. I will also direct that the Director-General or any person on his behalf be authorised to release to the Attorney-General or to any police officer or other investigating authority the transcript of the proceedings on 14 June 2013 and the transcript of today's proceedings.
In my view, the materials to be provided to the Attorney-General and which may be provided to any police officer or other investigating authority would include the affidavit of Nathan Browning dated 11 June 2013, the affidavit of Kim Moore dated 17 July 2013, and pages 1 - 8 of exhibit NB-7.
I propose to direct the Registrar to refer those papers, that is to say those affidavits and those pages of the exhibit, together with a copy of the reasons of Ward J of 13 May 2010 Re Helen [2010] NSWSC 1560, a copy of the transcript of 14 June 2013 and today, and a copy of these reasons to the Attorney-General.
[Counsel addressed.]
I propose the Registrar refer the specified papers to the Attorney-General, but if either the relevant officers of the Department or relevant officers of the Attorney-General's Department think further information should be provided, it will be open to the officers of the Director-General to provide that information. They could do so if they think it appropriate, either of their own motion or as a result of a request of other information they might receive either from the Attorney or a police officer.
I make those orders, namely:
1. Give leave to the Director-General and those acting on his behalf to disclose to the Attorney-General or to any police officer or other investigating authority, any of the affidavits or reports prepared in connection with these proceedings that the Director-General or any person acting on his behalf considers appropriate for the purpose of the investigation as to whether any offence has been committed or any proceedings should be brought by or against any of the four individuals who gave evidence before me on 14 June 2013.
2. Direct that the Director-General or any person on his behalf be authorised to release to the Attorney-General or to any police officer or other investigating authority a transcript of the proceedings on 14 June 2013 and of today's proceedings, as well as the affidavit of Nathan Browning dated 11 June 2013; the affidavit of Kim Moore dated 17 July 2013; and pages 1-8 of exhibit NB-7.
3. Direct that the Registrar refer those papers together with a copy of the reasons of Ward J (Re Helen [2010] NSWSC 1560) and a copy of the reasons given today to the Attorney-General.
Decision last updated: 05 August 2013