Sahadi and Savva and Anor - [2016] FCCA 589

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAHADI & SAVVA & ANOR

[2016] FCCA 589

Catchwords:
FAMILY LAW – Release of Family Report in criminal proceedings – implied obligation of being provided with the Family Report – genuine belief of investigating police officer.

Legislation:

Family Law Act 1975 (Cth), s.121

Federal Circuit Court Rules 2001 (Cth), r.1.05-1.07, 2.08, 15.10 and 23.01
Evidence Act 1995 (Cth), s.128
Director of Public Prosecutions Act 1986 (NSW), s.15A
Court Suppression and Non-Publication Act 2010 (NSW) ss.7, 8 & 12
Children (Criminal Proceedings) Act 1987 (NSW), s.15A

Cases cited:
Thornton & Workcover Corporation of South Australia (2009) FamCA 449
Tudway & Tudway & Anor [2015] FamCA 933
Commissioner of Taxation & Darling [2014] FamCAFC 59
Hogan v Hinch (2011) 243 CLR 506

Applicant:

MS SAHADI

Respondent:

MR SAVVA

Intervenor:

THE COMMISSIONER NEW SOUTH WALES POLICE

File Number:

SYC 2338 of 2011

Judgment of:

Judge Kemp

Hearing date:

10 March 2016

Date of Last Submission:

16 March 2016

Delivered at:

Sydney

Delivered on:

18 March 2016

REPRESENTATION

Counsel for the Intervenor:

Ms Gersace

Solicitors for the Intervenor:

NSW Crown Solicitor

Counsel for the Applicant:

Mr Dura

Solicitors for the Applicant:

Swifte Law

Solicitors for the Respondent:

Barber & Massey

THE COURT ORDERS THAT

The Commissioner New South Wales Police (“NSW Police”) be joined as an intervenor on an application for the release of the report of Dr C dated 14 November 2013 released to the father and the mother on 2 December 2013 (“the subject report”).
The application of The Commissioner NSW Police for the release of the subject report is to be heard without the need for a formal application or response.
The Commissioner NSW Police be granted leave to provide a copy of the subject report, redacted in terms of order 4 below, to the following persons solely for the purposes of the proceedings referred to in (h) below, and further subject to order 5 below:
(a)Mr Savva (“the father”) and/or his legal representative;
(b)Ms Sahadi (“the mother”) and/or her legal representative;
(c)Mr A (the mother’s brother) (“Mr A”) and/or his legal representative;
(d)Mr M (“Mr M”) and/or his legal representative;
(e)Mr W (“Mr W”) and/or his legal representative;
(f)Mr J (“Mr J”) and/or his legal representative;
(g)The office of the Director of Public Prosecutions (“the DPP”); and
(h)The judicial officer presiding in the criminal proceedings involving the abovementioned persons listed for hearing in the Supreme Court of New South Wales commencing on 4 April 2016 (“the Supreme Court proceedings”).
The subject report be redacted by:
(a)deleting the identity and any identifying details of Ms G and that of her family; and
(b)deleting the name of the child of the father and the mother and the child’s birth date.
The Commissioner NSW Police is to obtain prior to the provision of a copy of the subject report to the persons named in the above order 3(c)-(f)…

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.

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Details

Case: [2016] FCCA 589
Decision Date: 18 March 2016

CaseChat Overview and Summary

In the matter of Sahadi and Savva and Anor, Judge Kemp of the Supreme Court of New South Wales considered an application by the Commissioner of Police, New South Wales Police (“NSW Police”), for the release of a report prepared by Dr C dated 14 November 2013. This report had previously been released to the father, Mr Savva, and the mother, Ms Sahadi. The Commissioner sought to be joined as an intervenor in the proceedings concerning the release of this report.

The primary legal issue before the Court was whether the NSW Police Commissioner should be granted leave to release a redacted copy of the subject report to various individuals and entities, including the father, the mother, their legal representatives, certain other named individuals and their legal representatives, the Director of Public Prosecutions, and the judicial officer presiding over related criminal proceedings. A further issue concerned the specific redactions to be made to the report and the conditions under which it could be provided to certain parties.

Judge Kemp reasoned that the Commissioner should be joined as an intervenor and granted leave to release the report. The Court ordered that the report be redacted to remove the identity of Ms G and her family, as well as the name and birth date of the child of the father and mother. Crucially, the Court stipulated that before providing the report to Mr A, Mr M, and Mr J, the Commissioner was required to obtain written undertakings from these individuals not to release the report's contents to anyone other than their legal representatives, or alternatively, to make an application to the Supreme Court of New South Wales for an order prohibiting publication.

The Court ordered that the Commissioner of Police be joined as an intervenor and granted leave to provide a redacted copy of the subject report to the father, the mother, Mr A, Mr M, Mr W, Mr J, the Director of Public Prosecutions, and the judicial officer presiding over the criminal proceedings commencing on 4 April 2016. These provisions were subject to the specified redactions and the requirement for undertakings or court orders regarding the use and dissemination of the report by Mr A, Mr M, and Mr J.

Orders

Orders of the court

The Commissioner New South Wales Police (“NSW Police”) be joined as an intervenor on an application for the release of the report of Dr C dated 14 November 2013 released to the father and the mother on 2 December 2013 (“the subject report”).

The application of The Commissioner NSW Police for the release of the subject report is to be heard without the need for a formal application or response.

The Commissioner NSW Police be granted leave to provide a copy of the subject report, redacted in terms of order 4 below, to the following persons solely for the purposes of the proceedings referred to in (h) below, and further subject to order 5 below:

(a) Mr Savva (“the father”) and/or his legal representative;

(b) Ms Sahadi (“the mother”) and/or her legal representative;

(d) Mr M (“Mr M”) and/or his legal representative;

(e) Mr W (“Mr W”) and/or his legal representative;

(f) Mr J (“Mr J”) and/or his legal representative;

(g) The office of the Director of Public Prosecutions (“the DPP”); and

(h) The judicial officer presiding in the criminal proceedings involving the abovementioned persons listed for hearing in the Supreme Court of New South Wales commencing on 4 April 2016 (“the Supreme Court proceedings”).

The subject report be redacted by:

(a) deleting the identity and any identifying details of Ms G and that of her family; and

(b) deleting the name of the child of the father and the mother and the child’s birth date.

The Commissioner NSW Police is to obtain prior to the provision of a copy of the subject report to the persons named in the above order 3(c)-(f) inclusive, the following:

(a) An undertaking in writing from such persons to this Court to be filed in the Registry not to release the contents of the subject report to any person, save a legal representative retained by that person in the Supreme Court proceedings, without further leave of this Court; or

(b) If no undertaking in writing is provided in terms of (a) above, then, in terms of The Commissioner’s undertaking to this Court, the making of an application to the Supreme Court of NSW, to obtain from that Court an order directed to any such person not to publish the contents of the subject report and for its use only in the Supreme Court proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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