SL v Chief Executive Officer of the Department for Child Protection and Family Support

[2015] WASC 495

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   SL -v- CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT [2015] WASC 495

CORAM:   PRITCHARD J

HEARD:   22 SEPTEMBER 2015

DELIVERED          :   22 SEPTEMBER 2015

FILE NO/S:   SJA 1021 of 2015

BETWEEN:   SL

Applicant

AND

CHIEF EXECUTIVE OFFICER OF THE DEPARTMENT FOR CHILD PROTECTION AND FAMILY SUPPORT
First Respondent

LHL
Second Respondent

JCL
Third Respondent

Catchwords:

Practice and procedure - Application for leave to admit further evidence on the appeal - Application granted

Legislation:

Criminal Appeals Act 2004 (WA), s 40(1)(e)

Result:

Application granted

Category:    B

Representation:

Counsel:

Applicant:     In person

First Respondent           :     Mr B D Nelson

Second Respondent      :     No appearance

Third Respondent          :     No appearance

Solicitors:

Applicant:     In person

First Respondent           :     State Solicitor for Western Australia

Second Respondent      :     No appearance

Third Respondent          :     Bannerman Solicitors

Cases referred to in judgment:

De La Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291

PRITCHARD J:

(This judgment was delivered extemporaneously on 22 September 2015 and has been edited from the transcript.)

1. I am dealing today with an application made on behalf of the first respondent for an order, pursuant to s 40(1)(e) of the Criminal Appeals Act 2004 (WA), that the first respondent be granted leave to admit further evidence on the appeal. That further evidence on the appeal is set out in an affidavit sworn by Mr Max Andrew Lewington on 18 September 2015.

2. Appeals against decisions of magistrates under the Children and Community Services Act 2004 (WA) of the kind in the present case are determined pursuant to the Criminal Appeals Act.  The provisions of that Act are not an entirely perfect fit in the case of appeals against decisions under the Children and Community Services Act, as will be apparent from some of the observations I am about to make. Section 40(1)(e) of the Criminal Appeals Act provides that:

   (1)For the purposes of dealing with an appeal, an appeal court may do any or all of the following -

   ...

   (e)admit any other evidence;

3. The court has a wide discretion under s 40(1)(e). That that is the case is apparent from observations made by the Court of Appeal in De La Espriella‑Velasco v The Queen[1] in the judgment of Pullin JA.  Amongst other things, his Honour observed that: 

   A number of points should be made about the power contained in s 40 to admit further evidence on the hearing of an appeal. Most emerge by the application of reasoning revealed in the decision of the High Court in CDJ v VAJ (No 1) (1998) 197 CLR 172. That was a case in which the High Court was considering s 93A(2) of the Family Law Act, which conferred on the Family Court of Australia the discretion, in an appeal, to receive "further evidence" upon questions of facts. The provision is therefore similar to s 40. The points which emerge are as follows:

   (a)The discretion to receive further evidence is unconfined by anything within s 40 and so the discretion is confined only by the subject-matter of the legislation and by the requirement that it be exercised judicially and consistent with the judicial process: (CDJ v VAJ per Gaudron J at [52] and [53], McHugh, Gummow and Callinan JJ at [110] and Kirby J at [186]).

   (b)In particular the discretion to admit further evidence is not restricted by the need to show "special grounds" or the procedural requirement of "special leave". The almost fixed rules at common law which govern the admission of further evidence on an appeal do not apply (per McHugh, Gummow and Callinan JJ [104] and Kirby J at [186]).

   (c)The power to admit further evidence exists to serve the demands of justice (McHugh, Gummow and Callinan JJ at [111]).

   (d)It is however, highly unlikely that Parliament, in conferring jurisdiction on the Court of Appeal to hear appeals, intended that s 40 should be construed in a way that would have the practical effect of obliterating the distinction between original and appellant jurisdictions (McHugh, Gummow and Callinan JJ at [111]).

   (e)The availability of further evidence relevant to the issues in the appeal cannot be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial (McHugh, Gummow and Callinan JJ at [111]).

   (f)Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Court of Appeal is satisfied that the further evidence would have produced a different result if it had been available at the trial (McHugh, Gummow and Callinan JJ at [111]).

   [1] De La Espriella‑Velasco v The Queen [2006] WASCA 31; (2006) 31 WAR 291 [150].

4. In this appeal, the appellant is appealing against a decision of a Magistrate to refuse an application by the appellant for an order that counsel for the first respondent withdraw from the case.  The evidence that is now sought to be adduced by the first respondent in this appeal is said to be relevant to the utility of the appeal.

5. It is unnecessary to describe the totality of the contents of Mr Lewington's affidavit but, in short, the thrust of it is that counsel who had previously been dealing with the present matter in the Children's Court on behalf of the first respondent, Ms Dinon, does not presently have involvement in the matter, and does not intend to have any further involvement in the proceedings.

6. At the hearing of the appeal, counsel for the first respondent wishes to make submissions that the evidence disclosed in Mr Lewington's affidavit means that the appeal has no utility, and that it should be dismissed as a consequence.  The basis upon which an order of that kind could be made, will be the subject of submissions by counsel for the first respondent at the appeal.  Of course, the appellant would also have the opportunity, in the course of the appeal, to make submissions in respect of that matter as well.  He has already alluded to some submissions he would wish to make about the extent to which the Court could rely upon Mr Lewington's affidavit to resolve the appeal, and he will be at liberty to expand on those matters in the hearing of the appeal itself. 

7. Returning to the exercise of discretion in s 40(1)(e), I am satisfied that this is a case in which it is appropriate for the Court to receive the further evidence set out in Mr Lewington's affidavit. I am satisfied that it would serve the demands of justice to ensure that the Court has before it this further material which appears to be relevant to the practical utility of the appeal itself. That is a matter upon which the Court will be assisted by further submissions by both parties in due course. In my view, the evidence should be admitted to permit that argument to occur.

8. The order that will then be made today is:

   1.Pursuant to s 40(1)(e) of the Criminal Appeals Act, the first respondent has leave to admit further evidence on the hearing of the appeal, namely the affidavit of Mr Max Andrew Lewington, sworn 18 September 2015.