TR v Constable Cox - [2020] NSWSC 389

Supreme Court

New South Wales

Medium Neutral Citation: TR v Constable Cox & Ors [2020] NSWSC 389
Hearing dates: 1 April 2020
Date of orders: 09 April 2020
Decision date: 09 April 2020
Jurisdiction: Common Law
Before: Wilson J
Decision:
1. Leave to appeal the refusal for a change of venue is granted.
2. Summons dismissed
3. Subject to order 4, no order as to costs
4. Should any defendant seek an order for costs, written submissions in support are to be filed by email to my Chambers, and served, by 4pm on 17 April 2020. Any submission in reply is to be filed by email to my Chambers, and served, by 4pm on 29 April 2020. Any application will be dealt with on the papers.

Catchwords:
STATUTORY APPEAL – appeal from a decision of the Local Court under s 53(3)(b) Crimes (Appeal and Review) Act – refusal of a magistrate to grant applications – applications for a female magistrate to hear summary criminal proceedings – application to exclude men, including male witnesses, from access to evidence – application for a change of venue – question of interlocutory orders – jurisdiction of the Court – question of whether Magistrate failed to consider cultural beliefs of plaintiff – question of rejection of evidence – denial of procedural fairness
JUDICIAL REVIEW – s 69 Supreme Court Act - error of law on the face of the record – question of error of law
Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW)
Court Suppression and Non-Publication Orders Act 2010 (NSW)
Crimes Act 1900 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Criminal Appeal Act 1912 (NSW)
Evidence Act 1995 (NSW)
Local Court Act 2007 (NSW)
Supreme Court Act 1970 (NSW)
Cases Cited: Anson v Director of Public Prosecutions (2002) 129 A Crim R 328
Da Silva v R [2016] NSWCCA 40
Jango v Northern Territory of Australia [2003] FCA 1230
Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126
Northern Territory of Australia v Griffiths (No 2) (2019) 93 ALJR 803; 368 ALR 77; [2019] HCA 19.
Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) 147 CLR 35
Re Lake Torrens Overlap Proceedings (No 2) [2015] FCA 1195.
Russell v Scott & Anor [2017] NSWSC 1720
R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
Salter v Director of Public Prosecutions (NSW) (2009) 75 NSWLR 392
Ward v Zimmer [2015] NSWSC 525
Western Australia v Ward (1997) 76 FCR 492; 145 ALR 512; [1997] FCA 585
Category: Principal judgment
Parties: TR (Plaintiff)
Constable Michael Cox (First Defendant - Submitting Appearance)
Children’s Court of New South Wales (Second Defendant – Submitting Appearance)
Attorney General for New South Wales (Third Defendant)
Representation:
Counsel:
Ms C Ronalds SC with Ms R Khalilizadeh (Plaintiff)
Dr D Kell with Ms J Caldwell (Third Defendant)
Solicitors:
Aboriginal Legal Service NSW/ACT (Plaintiff)
Crown Solicitors Office (First Defendant)
State Crown Solicitor- K Smith (Second Defendant)
State Crown Solicitor- L Nichols (Third Defendant)

File Number(s): 2019/00304946
Publication restriction: The plaintiff cannot be identified other than by “TR”.

Judgment

HER HONOUR: At issue in these proceedings is whether a Magistrate sitting in the Children’s Court of New South Wales was in error in refusing to make orders with the effect of excluding men, including any male magistrate, from access to certain of the evidence to be tendered by the prosecution in criminal proceedings against the plaintiff. The plaintiff contends that there was error and seeks review of the decision of the Magistrate, pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) (the “CAR Act”) or, alternatively, pursuant to s 69 of the Supreme Court Act 1970 (NSW). Relief is claimed against the Magistrate’s refusal to:

Order “that the criminal proceedings against TR be heard by a female Magistrate”;

Restrict “the playing of a videotape of a strip search of the [plaintiff] (a 15 year old girl) before men”;

Direct “a change of venue to a location with a female Magistrate”; or

Alternatively, permanently stay the prosecution.

The complaint about the refusal of the Magistrate to stay the prosecution of TR was not pressed in the proceedings before this Court.
The relief that the plaintiff seeks, relevantly, is:

[A pseudonym order, previously granted];

To the extent necessary, leave be granted to appeal an interlocutory decision, pursuant to s 53 of the Crimes (Appeal and Review) Act;

The appeal be upheld.

Order that the order of the Magistrate be set aside pursuant to s 55 Crimes (Appeal and Review) Act 2001 (NSW).

In the alternative to proposed orders 2, 3 and 4: An order in the nature of certiorari pursuant to s 69 Supreme Court Act 1970 (NSW) quashing the orders of the Local Court in refusing the application.

The matter be remitted for determination according to law before a different magistrate.

A Preliminary Note as to the Parties

The Summons originating these proceedings named Constable Mitchell Cox as the First Defendant and the Children’s Court of NSW as the Second Defendant. Each of the defendants filed a submitting appearance, save as to costs. There being no active contradictor, an order was made by the Registrar on 7 November 2019, with the consent of the parties, granting leave to the Attorney General for the State of New South Wales (“the Attorney”) to intervene, and joining him as the Third Defendant to the Summons.

The Evidence

The plaintiff relies upon two affidavits of Keisha Hopgood, affirmed on 13 August 2019 and 31 January 2020 respectively. Ms Hopgood, a solicitor with the Aboriginal Legal Service, is instructed by TR. In her first affidavit, Ms Hopgood produced a copy of the transcript of relevant proceedings in the Children’s Court, together with some of the documentation relevant to the hearing in that jurisdiction. She set out the history of the matter as it could be drawn from the file held by her. In her most recent affidavit, Ms Hopgood provided some information concerning the percentage of female Magistrates in NSW, and the usual listing arrangements in the Children’s Court.
The Attorney relies upon an affidavit of Lucy Nichols affirmed on 28 February 2020. Ms Nichols is a solicitor under the supervision of the Crown Solicitor for New South Wales, who has the carriage of this matter for the Attorney. She has provided a copy of the file held by the Children’s Court concerning the criminal proceedings against TR.
The history of both the criminal prosecution of TR, and the proceedings relevant to the current application, can be gleaned from the evidence tendered by the parties.

The History of the Matter

The details of the criminal offences alleged against TR are set out in a Statement of Facts prepared by the first defendant and produced by Ms Nichols as Annexure A to her affidavit. The allegations are summarised below.
On the late afternoon of 11 March 2019 the complainant parked his car, a Mitsubishi Pajero, in the driveway of his home at Glenfield Park. He mislaid his car keys.
Around midnight, TR and another girl, 16 year old MR, came across the Pajero keys and used them to steal the complainant’s car. The complainant heard his car starting and saw it being driven away. He called police and reported the theft. Officers began patrolling in an attempt to find the car and the thieves.
At about 1.30am, TR drove the stolen Pajero to a residence in Ashmont, with MR as her passenger. A witness watched as she parked the car outside the premises, and then got out. MR alighted from the passenger side of the car. The two girls went inside the house. At about this time, police received information from an anonymous individual who named TR and MR, and reported that they had just arrived at an Ashmont residence in a stolen car.
Officers patrolling the area saw the Pajero and found that its engine was still hot. They approached the house and asked to speak with TR and MR. TR emerged from the house carrying a blue duffel bag. She was regarded as “extremely unco-operative” by the police officers and would not speak to them. MR emerged, and gave the police a false name.
The officers searched the stolen Pajero and found a single white shoe on the back seat of the car, and two black latex gloves in the front of the car. A search of TR’s duffel bag located the companion white shoe to the shoe in the car, and a number of black latex gloves. The officers returned to the house and arrested TR and MR.
Both girls are said to have become aggressive and violent, resisting the efforts of the officers to put them into a caged police truck. The plaintiff kicked out at one officer, Sergeant Steven Probst, breaking a body worn camera he was carrying and scratching his arm (leading to a charge of assaulting a police officer in the execution of duty contrary to s 58 of the Crimes Act 1900 (NSW)).
The plaintiff and MR were taken to Wagga Wagga Police Station and moved into the charging area, where each continued to “be combative”. When an attempt was made to “pat” or “frisk” search TR, she spat into the mouth of Leading Senior Constable Nicole Forrest, giving rise to a second charge of assaulting a police officer in the execution of duty. The attempt to search the plaintiff was abandoned.
The adult support person nominated by the plaintiff was asked to attend the Police Station. Whilst awaiting her arrival, TR was observed to have a set of car keys in her hand, one key of the set being the key to the stolen Pajero. She is said to have produced a number of items successively from beneath her clothing, and threatened to use the objects against police, or herself.
After the support person had arrived a decision was made to “strip search” the plaintiff, in the presence of her support person (although it is not clear on the evidence if she remained throughout). Because of TR’s aggressiveness and the earlier assaults upon two officers, “multiple female officers” carried out the search. The Statement of Facts does not refer to the presence of any male officers. In her affidavit of 13 August 2019, Ms Hopgood says that the search was conducted “by 2 female officers, with 1 male officer present”. It is not clear if that information is drawn from a file note of TR’s instructions, or from other information.
TR became very violent during this procedure and kicked out at Constable Rachel Doran, striking her numerous times to the chest, and causing soreness to the officer and smashing the body worn camera she was carrying. Leading Senior Constable (“LSC”) Shannon Gates was also kicked numerous times to the face and chest, leaving her with soreness to those areas. The assault upon Constable Doran was reflected by a further charge of assaulting a police officer in the execution of duty, and a charge of damaging property contrary to s 195(1)(a) of the Crimes Act, relating to the destruction of the camera. The assault on LSC Gates led to a fourth charge of assaulting a police officer in the execution of duty.
The plaintiff was also charged with stealing the Pajero contrary to s 154A(1)(a) of the Crimes Act.
According to the Children’s Court Bench Sheets produced by Ms Nichols, the plaintiff was required to appear before the Wagga Wagga Children’s Court that day, 12 March 2019. The matter was stood over; bail was not applied for and was refused. On subsequent mentions of the matter before the court, brief service orders were made and, on 30 April 2019, pleas of not guilty were entered to all but the take and drive offence. The matter was listed for hearing before Wagga Wagga Children’s Court on 27 September 2019. A plea of guilty was entered for the s 154A(1)(a) charge.
The prosecution case for the remainder of the alleged offences included an audio-visual recording of the search of TR taken from the closed circuit security cameras in operation in the relevant area of the police station.
On 23 August 2019 the plaintiff filed an application for a change of venue. The application was supported by an affidavit of Emily Bruton affirmed on 19 August 2019. Ms Bruton, a Field Officer with the Aboriginal Legal Service, deposed that the “showing of a woman’s sensitive body parts is considered women’s business” in Aboriginal culture and may only be conducted in the presence of females. The “sensitive body parts” that were women’s business were given as the “chest area, backside and genitals”. Cultural shame would result where women’s business is conducted in front of men, a shame that would stay with the particular woman “for a long time”. Ms Bruton said,

9.    In this instance, I would expect that this would result in the woman being reluctant to talk, reluctant to answer questions, and their body language would be affected. I would also expect it to be highly likely she would avoid proceedings entirely.
10.    I have spoken to [TR] and she said that she is extremely uncomfortable with a male looking at the image of her body.
11.   She has told me that if she cannot get a female magistrate and prosecutor that she doesn’t want to defend the matter.

In written submissions filed with the application it was submitted that the matter should be transferred to Griffith Children’s Court to be heard before one of the female magistrates then regularly sitting there. The plaintiff argued that if the evidence [of the recording] were produced before male persons the likelihood that she would wish to defend the matter would be reduced and, if she did defend the matter, her ability to give evidence in her case would be prejudiced.
The evidence with which issue was taken was described as a recording of 36 minutes and 58 seconds in which TR’s “bra and chest region” could be seen, and a recording of 8 minutes and 7 seconds in which TR’s “fully exposed bare backside” could be seen. It was noted that TR “will be required to give evidence in her defence” and that “The footage [of the search] is required by the defence”.
The change of venue to a court in which a female magistrate presided was submitted to be necessary to ensure a fair trial. Conceding that a change of venue would lead to delay, it was argued that,

This must be balanced against the risk of unfairness towards the Young Person. The footage will be required to be played to establish the search as a strip search. The Young Person will be required to give evidence in her own defence. The Young Person has indicated that if the footage is to be played before males, she does not wish to defend the matter for that reason. In the event that she does decide to defend the matter, it is submitted it would affect the quality of the evidence.

The application for a change of venue was listed for hearing on 2 September 2019 at Wagga Wagga Children’s Court.
On 2 September 2019 the matter came before Magistrate Halburd, who was sitting in the list court. Because of the volume of work the court had to deal with on that day his Honour reached the plaintiff’s application at about 6pm that evening. Ms Winn of the Aboriginal Legal Service appeared for the plaintiff (who was not present) and Sergeant Jones (a female officer) appeared for the prosecution.
There was some discussion between the Bench and the Bar Table as to practical measures that could be taken to accommodate TR’s concerns about the recording of the search being played in court. Magistrate Halburd suggested that the parties could come to an agreement about what was shown on the recording to obviate the need for it to be played in court. Ms Winn responded,

It’s going to result in there still being the same issues culturally in relation to [TR] giving evidence because of her not wanting to discuss aspects of – it may be different. I haven’t got these instructions from her, but it may be different if she knows that your Honour has not viewed he footage, she may be happy to talk about it if she knows that your Honour hasn’t seen it. But I do stand firmly in the submission that it has gender ties and that it’s something that’s specific within the Aboriginal community. There are ways to get around it and there are ways that culture in the Northern Territory have gotten around it, in relation to land claims, and dreamings and stories and all that sort of stuff.

She sought some time to obtain the relevant instructions from TR, and to provide the authorities from the Northern Territory to which she had referred. The matter was adjourned until the following afternoon.
At some time prior to the application for a change of venue being heard on the afternoon of 3 September 2019, the plaintiff filed an Amended Application with the Local Court, in which the following orders were sought:

An order that the matter be heard by a Female Magistrate;

An order that no men be present for the playing of the videotape of the search; and that it not be disclosed to men;

In the alternative to (1) a change of venue for the hearing to a Children’s Court sitting where a female Magistrate regularly sits;

Otherwise that the matter be permanently stayed.

The grounds for the application were given as:

The applicant is a young female (16 old) who is personally offended by the idea of footage of her exposed private parts being observed by men.

The applicant is a young female Aboriginal Person (16 old), who’s cultural background means that the observation of exposure of private parts between genders is specially offensive.

For the proper determination of the matter, the footage would need to be shown and the applicant give evidence.

The applicant’s capacity to give evidence and make answer to the charge will be affected by the offence taken to the process.

The applicant will be denied access to justice.

The orders sought are of minimal inconvenience to the Local Court of NSW.

The orders sought are of no inconvenience to the Prosecuting police.

The orders sought are in the interests of justice.

The orders sought should be made.

An affidavit in support of the Amended Application was also filed. It had been affirmed that day by TR’s mother, Ms. S.
Ms S did not live with TR, although she deposed that she was aware of her daughter’s “Wagga matter”, having spoken with her about it. She said,

[TR] has told me some things about what happened. She doesn’t want to talk about it much. I can see that it hurts her. I think it is traumatic to re-live that.
She was really upset about being strip searched. She said that there were men in there and it shouldn’t have happened.

Under a heading “Concerns”, Ms S continued,

I am really concerned about a teenage girl being strip searched by male police officers.
I don’t think any man should be coming near a young girl when they are naked. I don’t think it is right for Aboriginal people or for white people.
I think that there is a big issue with [TR] being searched by men. [TR] has had issues with sexual assault in her past. The perpetrator was a man in Sydney. She went to the police station in Sydney and they told her to go home. Nothing was done. She has had counselling about that incident. [TR] doesn’t trust the police following that incident.
Being searched with men present has caused [TR] harm.
[…]
If [TR] has to be in court when the video is played with men around she will break down. It is not good. It is her body. She is a young girl. I think that if only women were present it would be better for her.

Written submissions dated 3 September 2019 accompanied the Amended Application. It was noted that, in defending the charges against her, TR sought to challenge the legality of the searches made of her person by police officers, and “the challenge will require the tribunal of fact to observe the videotape of the search, and hear the young person’s evidence”.
The plaintiff pointed to s 24 [later amended to s 28] and s 44 of the Local Court Act 2007 (NSW) (“the LC Act”) as providing power for the Children’s Court to make the orders sought, on the basis that the exercise of the powers was not inconsistent with the Children (Criminal Proceedings) Act 1987 (NSW).

It was submitted that the Local Court Rules (the “LC Rules”) also provided a power at rule 4.3 for the court to manage its own business and, further, that the court had an implied jurisdiction to make any orders necessary to ensure that justice was done.
Reliance was also placed upon s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the Suppression Act”) as providing a power for the court to suppress the disclosure or publication of the relevant evidence, with the limitation based on gender.
The Amended Application, filed as late as it was, had not been seen by the Prosecutor until shortly before the hearing of the application was due to commence; the Magistrate did not see it until the matter was mentioned. Unsurprisingly, the hearing of the application could not proceed and was further adjourned until 10 September 2019.
On that date, Magistrate Halburd returned to the prospect of a practical solution being agreed between the parties so that it was not necessary for the relevant footage to be played, but Ms Winn for the plaintiff advised the court that the problem of TR being “uncomfortable giving that evidence in front of males” would remain. His Honour thereafter heard argument from both parties.
The plaintiff relied largely on her written submissions. She referred the court to Jango v Northern Territory of Australia [2003] FCA 1230 and Northern Territory of Australia v Griffiths (No 2) (2019) 93 ALJR 803; 368 ALR 77; [2019] HCA 19.
The Prosecutor, whilst prepared to take steps to address TR’s concerns, opposed the orders sought. As a matter of practicality, she noted that there were only two female Police Prosecutors in the region, and both were based at Wagga Wagga rather than Griffith. There were difficulties with either travelling to Griffith. Of the eight police witnesses, three female officers had been involved in the search of the plaintiff; all were required by TR for cross-examination. All witnesses were stationed at Wagga Wagga and had been rostered to attend Wagga Wagga Children’s Court on the hearing date; delay and substantial inconvenience would arise if it were necessary for them to attend court in Griffith on some other day. The Prosecutor was not concerned by a female Magistrate hearing the matter, but submitted that the matter should be allocated to a hearing court in the ordinary course.

The Orders Made in the Children’s Court

Having heard evidence and brief argument in support of the change of venue application very late on 2 September 2019, and further evidence and short argument in support of the Amended Application on 10 September 2019, on both days in the course of hearing a busy list, his Honour gave an ex tempore judgment on 10 September, declining to make the orders sought.
In his ex tempore reasons, the Magistrate set out the nature of the application and the arguments in support of it advanced by TR. He referred to the authorities cited by TR but distinguished them from the matter before him on the basis of both the nature of the proceedings, each being a case dealing with a Native Title claim, and the evidence adduced in the cited cases concerning the extreme penalties meted out to persons who breached cultural law by disclosing gender restricted matters. His Honour observed that there was no evidence of a similar nature before him.
The Magistrate noted that there was a practical resolution to the problem, being to excise or not play the discrete portions of the recordings that showed the plaintiff’s chest and buttocks, but that the plaintiff was not willing to have the hearing proceed in that way.
He described the matter for resolution as a “difficult situation” that required the court to balance “the young person’s interests and her cultural beliefs with the appropriate administration of justice”. Ultimately, his Honour concluded that the second order sought by the plaintiff (to exclude all men from seeing the recordings) was one that could not be made and that, as a matter of practical reality, if that order could not be made there was no utility in orders 1 and 3. He said,

It seems to me, I could not make an order that the video not be disclosed to any men. The bigger problem and the realistic problem for this Children’s Court is that I am told that five of the witnesses who are required for cross-examination are male. It seems to me that it would be entirely inappropriate to constrain the ability of the prosecution to properly present its case, by preventing those officers from commenting on video tape of what, as I understand, is alleged that they were present for. I note that these are not minor assaults that are alleged.

His Honour referred to the evidence relied upon by the plaintiff, expressing reservations as to its admissibility. With respect to Ms Bruton’s evidence, he accepted that the portion of it that related to “women’s business” and Aboriginal law was admissible pursuant to s 78A of the Evidence Act 1995 (NSW), but his Honour expressed concern at the opinions expressed by Ms Bruton concerning TR (being paragraphs [9], [10] and [11] of her affidavit). He said,

Certainly the first of the observations about what is women’s business and that it must only be conducted in the presence of women, I can understand that, that is admissible under s 78A. I have concerns as to opinions that are thereafter expressed because the deponent is not an anthropologist, is not a psychologist, it would seem is not a person who is expert to provide the evidence that they do, with respect to a person being reluctant to talk or answer questions and their body language being affected. That affidavit indicates that the young person has indicated to Ms Bruton that if she cannot get a female magistrate and prosecutor, she does not want to defend the matter.

Referring to the affidavit of Ms S, his Honour set out its contents in summary form, including the opinions expressed by Ms S as to the possible impact on TR if the footage was to be shown in the presence of men.
His Honour accepted that the situation was very distressing for TR and for her family. He was mindful of the plaintiff’s case, that the searches of her person by police had been illegal, and there was a significant public interest in fully ventilating the matter before a court. However, his Honour concluded that,

In balancing the various interests, I am not willing to constrain the way the prosecution presents this case. Given that five of the witnesses being cross-examined are men, I cannot see any way that the video not be played. That said, I cannot see – as I have already perhaps indicated – the necessity to play the two matters of seconds that are complained of, it does not seem to be in dispute what is depicted. I note that the prosecutor today has already indicated a female prosecutor has been assigned to conduct this matter. So I am not going to grant the order in condition 2.
Having not granted the order in condition 2, then there is no logical reason why I would grant the order condition 1 that the matter be heard by a female magistrate, because I have already indicated there will, in my view, of necessity be men who are present for the playing of at least some of the video. Most of which, as I understand it, is not objectionable on the basis of the young person’s concerns.

Turning to the fourth order sought by TR, for a permanent stay of the prosecution, the Magistrate referred to the public interest in determining matters such as the matter involving TR, and declined to stay the proceedings. Relevant to that and to the balance of the orders that had been sought his Honour said,

There is a very significant community interest in serious assaults on police officers executing their duty proceeding. For the reasons that I have already outlined above, in my view, it is not to deny procedural fairness or natural justice to the young person. It is at the end of the day, as I understand it, mere seconds of a, what otherwise would seem very lengthy videos of whatever went on at the police station. In my view, there is no necessity for those portions to actually be played, as I have already indicated. Accordingly, the applications are refused.

Having given judgment, the Magistrate told the parties that female court staff would be allocated to the hearing. Sergeant Jones had earlier confirmed that a female prosecutor was available at Wagga Wagga to appear for the prosecution.
Two days before the hearing was due to proceed, the present Summons was filed in the Registry of this Court. The Children’s Court proceedings were necessarily adjourned pending the resolution of this application.

The Application before the Court

In seeking leave to appeal the Magistrate’s orders or, alternatively, judicial review of them, the plaintiff advances four grounds, advanced without distinction between the heads of review. They are as follows:

The Magistrate erred in determining the application on the basis that witnesses needed to observe the footage in the course of proceedings; particularly that:

witnesses would relevantly need to observe that footage at all,

failure to consider the reduction in harm by ordering a female Magistrate,

relying on the witnesses' need to observe the footage as a foundation for declining the order for a female Magistrate.

The Magistrate erred in failing to properly take account of the Applicant's circumstances; particularly that:

the Applicant is a young female who did not wish for unknown men to view the footage of the strip search,

the viewing of the footage by men would cause distress to the Applicant on the basis of her Aboriginally.

The Magistrate erred in refusing to admit evidence (from witnesses Emily Bruton in affidavit of 19 August 2019 (in part); and from witness [Ms S] in affidavit of 3 September 2019 (in full)), in an interlocutory application proceeding where:

no objection was taken by the defendant to the application below,

no cross-examination was requested by the defendant of either proposed witness,

the two affidavits were materially relevant to the application before the Court,

the only identified reason for the rejection of the evidence was that it was "opinion",

it was not open to the Magistrate to reject the evidence on that basis.

The Magistrate denied the Applicant procedural fairness in making a decision which was not reasonably expected without an opportunity to be answered; in that:

the Magistrate determined the application on the basis that police needed to give evidence about the video, without the prosecutor indicating that this was a course they were going to take,

this issue was not raised with the Applicant below (or the respondent) by the Magistrate prior to determination,

the Applicant below was denied an opportunity to give an answer or contend that the evidence of officers observing the footage could not be relevant to the proceedings.

In her written submissions in support of the application the plaintiff notes that the central issue in the proceedings is whether the Children’s Court had the power to make the orders sought and, if so, whether they should have been exercised in the plaintiff’s favour.
It is submitted that the Children’s Court had either statutory or implied power to make the orders sought by TR. The Children’s Court can exercise the powers of the Local Court where not inconsistent with the Children (Criminal Proceedings) Act, and the Local Court has broad powers to control and manage proceedings before it.
The plaintiff identified a number of sources of power for the Children’s Court to make the orders sought. They are:

s 28 of the LC Act which provides a general power to give directions as to matters of practice and procedure;

s 44 of the LC Act which provides for the application of Part 4 of the LC Act to specified proceedings;

r 4.3 of the LC Rules which provides the court with powers to manage proceedings; and

the implied jurisdiction that the court has to ensure that justice is done.

It is submitted that, bearing in mind that the Children’s Court had these powers, the Magistrate erred in the ways asserted in grounds 1 to 4. It is contended that, as Aboriginal and Torres Strait Islander people are vulnerable within the eyes of the law,

It is incumbent upon the practitioners and decision makers in the criminal justice system to ensure that young Aboriginal women who come before the courts have the opportunity to access appropriate safeguards to protect them, and are not subjected to further trauma through court processes. This application, both at first instance and in the present case, is underpinned by the need for recognition of the importance of cultural and gender-based adjustments in specific cases, where a vulnerable young person would otherwise be denied a fair hearing and denied justice.

This Court is urged to determine grounds 1 to 4 on the basis of that proposition.
The grounds advanced by the plaintiff are all based upon the premise that the Children’s Court had the power to make the orders she sought. In brief summary, the grounds are advanced as follows:

Ground 1: The Magistrate erred in determining the application on the basis that witnesses needed to observe the footage in the course of the proceedings

The plaintiff argues that there was neither evidence nor any submission before the Children’s Court that demonstrated that, for the prosecution to be able to put its case, it would be necessary for male police witnesses to view the search footage. It was thus an error of law for his Honour to so find.
It is submitted that his Honour failed to consider the “reduction in harm” to TR by ordering that a female Magistrate hear the proceedings. The plaintiff contends that, in reaching the decision to decline the application before him, the Magistrate rejected the whole of the evidence of Ms S and that part of the evidence of Ms Bruton which did not refer to Aboriginal custom or law, and that this too was an error.

Ground 2: The Magistrate erred in failing to properly take account of the Applicant’s circumstances

The plaintiff submitted that his Honour was in error in not paying proper regard to either her wish that no male person view the footage of the search, or the harm that would be done to her if that occurred.
The Court was referred to a number of Federal Court decisions in support of this ground: Northern Territory of Australia v Griffiths (No 2) (2019) 93 ALJR 803; 368 ALR 77; [2019] HCA 19; Western Australia v Ward (1997) 76 FCR 492; 145 ALR 512; [1997] FCA 585; Jango v Northern Territory of Australia [2003] FCA 1230; and Re Lake Torrens Overlap Proceedings (No 2) [2015] FCA 1195.
These decisions all relate to gender restricted evidence in Native Title claims.

Ground 3: The Magistrate erred in refusing to admit evidence (from witnesses Emily Bruton [.. and Ms S…])

It is submitted that this evidence was clearly rejected by his Honour, even though it was relevant and admissible, there was no objection to it, and neither of the witnesses were required by the prosecution for cross-examination. Because of this, the plaintiff contends that she was denied procedural fairness because she was not warned that the evidence would be rejected, or given an opportunity to be heard, and was precluded from putting on other evidence.
It is argued that, in addition to being procedurally unfair, his Honour erred in law in not providing reasons as to how the evidence was excluded under the Evidence Act.

Ground 4: The Magistrate denied the Applicant procedural fairness in making a decision which was not reasonably expected without an opportunity to be answered

It is submitted that the Magistrate was in error in determining the application on the basis that it would be necessary for male police witnesses to view the footage, without there having been any meaningful exchange with the parties, or any submissions on that aspect of the matter. The plaintiff argues that she was denied procedural fairness because she was not permitted to “properly contend that the evidence of the officers observing the footage could not be relevant to the proceedings”, even though this feature of the matter was regarded as determinative by the Magistrate.

Consideration

The Summons filed by the plaintiff seeks leave to appeal against an interlocutory decision of the Children’s Court pursuant to s 53(3)(b) of the CAR Act or, alternatively, an order in the nature of certiorari pursuant to s 69 of the Supreme Court Act. It is important at the outset to be precise about the nature of the review sought, and the power of the Court to undertake the review.
Section 53(3)(b) of the CAR Act provides:

53 Appeals requiring leave
(3) Any person against whom-
(b) an interlocutory order has been made by the Local Court in relation to the person in summary proceedings,
may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court.

The alternative basis upon which review of the Magistrate’s decision is sought is s 69 of the Supreme Court Act, which provides for proceedings in lieu of writs, and preserves to the Court (by s 69(3)) the jurisdiction to grant any relief or remedy in the nature of a writ of certiorari if the Court is satisfied that the ultimate determination of a court or tribunal in any proceedings has been made on the basis of an error of law that appears on the face of the record of the proceedings.
It would only be necessary to turn to consider whether the Court’s supervisory jurisdiction should be exercised if the statutory appeal failed, or was not available.
As to the statutory appeal, this Court only has power to hear the appeal if the matters set out in s 53(3)(b) are met:

The appeal must be brought by a person against whom an order has been made in the Local (or Children’s) Court;

The order must be an “interlocutory order”;

The appeal may only relate to “a question of law alone”; and

The Court must grant leave.

Of those requirements, although there is no issue that the plaintiff is a person with respect to whom the Children’s Court has given a decision, in their written and oral submissions, neither party addressed the question of whether that decision was one which constitutes an “interlocutory order” amenable to an appeal under s 53(3)(b). There is a dispute as to whether the grounds raise questions of law alone.
In the course of considering this matter, and giving attention to that initial question of the nature of the order made in the Children’s Court, this Court formed a preliminary view that there was a real issue concerning that aspect. The parties were invited to file further submissions in writing on that question, if they wished to do so.
The plaintiff submitted that each of the decisions made by the Magistrate was an “interlocutory order” such as to enliven the Court’s jurisdiction under s 53(3)(b) of the CAR Act. The Court was referred to Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) 147 CLR 35, and Anson v Director of Public Prosecutions (2002) 129 A Crim R 328. In Anshun it was observed by Mason and Murphy JJ that the test of an “interlocutory judgment” was focused on “legal effect rather than practicality” (at 38). In Anson a decision of a magistrate determining that a charge was indictable rather than summary was regarded by O’Keefe J as an “interlocutory order” for the purposes of s 104(4) of the Justices Act 1902 (NSW) (now repealed) because the decision “had the effect of changing fundamentally the procedure for the determination of guilt or innocence of the accused” (at [40]).
It is submitted that in the present matter, his Honour’s decision fundamentally altered the way in which the hearing against the plaintiff would be conducted, including whether the plaintiff would be willing to defend the matter.
The Attorney noted that there is no clear test by which an order may be distinguished from other decisions of a court, such as rulings. The Court was referred to Salter v Director of Public Prosecutions(NSW) (2009) 75 NSWLR 392, which sets out the relevant principles. The Court was also referred to a number of decisions considering the broadly analogous wording of s 5F(3) of the Criminal Appeal Act 1912 (NSW).

The Attorney submits that, even if the decision to refuse the plaintiff’s application for a female magistrate to hear the case is not an “order” for the purposes of s 53(3)(b), the Court still has jurisdiction to consider the application for judicial review pursuant to s 69 of the Supreme Court Act. The refusal to grant the application for all males to be prevented from seeing the search footage may be able to be characterised as an order. It was noted that a refusal to direct a change of venue has been accepted as an “interlocutory order” amenable to review pursuant to s 5F(3) of the Criminal Appeal Act: Da Silva v R [2016] NSWCCA 40.
I have taken these submissions into account.
The determination of what is an “order” for the purposes of s 53(3)(b) of the CAR Act is not necessarily straightforward. There is no definition of “interlocutory order” in the CAR Act, and no readily applicable test that will answer the question. In Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126, King CJ expressed the difficulty in this way, at 127:

There is no completely satisfying definition of either “judgment” or “order” and no exhaustively definitive way of distinguishing between judicial acts which should be characterised as judgments and judicial acts which should be characterised as orders. […]
A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact, law or procedure made during the course of a hearing. Such incidental rulings are not judgments or orders and are therefore not appealable even by leave.

In Ward v Zimmer [2015] NSWSC 525, Hall J was required to determine whether a decision permitting the prosecution to re-open its case was an interlocutory order amenable to review by the Supreme Court. His Honour summarised the applicable principles (at [110]) thus:

The following observations of Spigelman CJ in Salter are pertinent to the issue in the present case.
(1) It was noteworthy, the Chief Justice noted, that the word “order” appears in s 53(3)(b) alone and not, as is often the case, as part of a broader formulation extending to “judgment or order”: cf Criminal Appeal Act 1912, s 5F, a matter discussed in R v Steffan, supra, at 636-639; Salter at [10]-[11].
(2) The word “order” is narrower in scope than the word “judgment”, although they may substantially overlap in a particular statutory framework. For example, a decision on a separate question of law will constitute a “judgment” in a particular statutory context: at [13]‑[14].
(3) Whether a decision or ruling constitutes a “judgment or order” turns on whether there is an operative judicial act: Johnston v Nationwide News Pty Ltd at [29]. In Salter there was held to be no operative judicial act: (at [14]-[15]).
(4) Where there is no more than an answer by a magistrate on a question of law, there is no order: Salter at [15]-[16]). Such a determination does not “command that anything be done (or not done) in the sense of an order of the court. It remains no more than a ruling, one which can be tested on appeal to this Court after conviction”: Steffan at 639.

Whilst what constitutes an interlocutory order is frequently a matter of debate, it is tolerably clear from the language of s 53(3)(b), however, that the question is to be considered narrowly, at least in part because of the undesirability of fracturing criminal proceedings by a too ready resort to appeals at an interlocutory stage. Continuing at [110] to [111] in Ward v Zimmer, Hall J said

In addition to the above matters, Spigelman CJ in Salter addressed the issues of ultimate rights of appeal and the undesirability of fragmenting summary proceeding as matters that bear upon or provide a basis or rationale for confining the jurisdiction under s 53(3)(b).
The Chief Justice observed at 395 in that respect:
“By s 53(1) of the Crimes (Appeal and Review) Act an appeal lies to the Supreme Court from a conviction or sentence, by leave or, pursuant to s 52(1), without leave on a question of law. It is plainly undesirable to fragment committal or summary proceedings by interlocutory appeals. The ability to appeal after conviction strongly indicates that the word ‘order’ in both par (a) nd par (b) of s 53(3) should not be given an expansive meaning.”

In Russell v Scott & Anor [2017] NSWSC 1720, N Adams J undertook an instructive and very helpful review of the authorities relating to both s 53(3)(b) of the CAR Act and the analogous s 5F(3) of the Criminal Appeal Act 1912 (NSW), at [53] – [74], to determine whether a Magistrate’s decision to permit evidence to be taken remotely was an “interlocutory order”. I gratefully extract her Honour’s analysis (at [53] – [59] and [74]) here:

The meaning of “interlocutory order” in s 53(3)(b) of the CAR Act was considered by the Court of Appeal in Salter v Director of Public Prosecutions (NSW) . In that matter, the Court (Spigelman CJ, with whom McColl and Campbell JJA agreed) considered an appeal from a decision of Hulme J, who in turn had considered an appeal under s 53(3)(b) of the CAR Act from a decision of Magistrate O'Shane. No jurisdictional issue was taken before Hulme J; it was raised for the first time in the Court of Appeal. The decision of the Magistrate involved the construction of s 308H of the Crimes Act and, in particular, whether there should have been one charge or 22 separate charges laid in that matter. Spigelman CJ noted (at 394 [10]) that the word “order” appears in s 53(3)(b) alone, rather than as part of a broader formulation extending to “judgment or order” as is often the case. At [11], his Honour referred to the observations of Samuels JA in Barton v Walker [1979] 2 NSWLR 740 (at 747D):
“The word ‘order’ … is … a word familiar enough to lawyers commonly found in the collocation ‘judgment or order’. The distinction between these two notions is reasonably clear, but the cases discriminating between them do not cast light on the precise meaning of ‘order’ itself.”

At [13], Spigelman CJ observed that the word “order” is narrower in scope than the word“judgment”, although they may substantially overlap in a particular statutory framework. At [14], his Honour observed that, “Whether a decision or ruling constitutes a ‘judgment or order’ turns on whether there is an operative judicial act.” His Honour stated (at 394 - 395 [15]):
“Furthermore where, as in this case, a magistrate has done no more than answer a preliminary question of law, there has been, in my opinion, no order. As the joint judgment put it in Steffan (at 639), the determination does not ‘command that anything be done (or not done) in the sense of an order of the court. It remains as no more than a ruling, one which can be tested on appeal to this Court after a conviction’.”

His Honour went on to state (395 [16]):
“By s 53(1) of the Crimes (Appeal and Review) Act an appeal lies to the Supreme Court from a conviction or sentence, by leave or, pursuant to s 52(1), without leave on a question of law. It is plainly undesirable to fragment committal or summary proceedings by interlocutory appeals. The ability to appeal after conviction strongly indicates that the word ‘order’ in both pars (a) and (b) of s 53(3) should not be given an expansive meaning.”

His Honour later observed (at 395 [24]):
“Section 53(3)(b) of the Crimes (Appeal and Review) Act cannot be interpreted as if it said ‘an interlocutory decision’ has been made. Nor can s 53(3)(a) be read as if it said a decision has been made in committal proceedings. That would permit fragmentation of both kinds of proceedings to a degree which could not have been intended. I note that the leave requirement would not, of itself, serve that purpose because of the possible disruption occasioned by applications for leave.”

Justice Campbell agreed with the decision of Spigelman CJ and observed (at 396 [32]):
“The summons in the Supreme Court failed to reflect the terms of s 53(3)(b) of the Crimes (Appeal and Review) Act 2001, in that it sought ‘leave to appeal from the interlocutory decision in the Tribunal below’. Section 53(3)(b) does not confer jurisdiction for the Supreme Court to give leave to appeal against an ‘interlocutory decision’ only against an ‘interlocutory order’. There are some interlocutory decisions, of which those involved in the present case are examples, that are not in themselves interlocutory orders, and do not ever come to be given effect to by an interlocutory order.”

In Ward v Zimmer [2015] NSWSC 525, Hall J was faced with a threshold question of competence concerning an appeal under s 53(3)(b) of the CAR Act. The question before his Honour was whether a decision by a Magistrate in a Local Court hearing to permit the prosecution to reopen its case was an “interlocutory order” within the meaning of that provision. His Honour considered the question of jurisdiction at [90] - [115] of his judgment and concluded that the decision was not an interlocutory order. His Honour relied upon the decision in Salter v Director of Public Prosecutions (NSW) as well as on a number of CCA decisions. His Honour noted the following in relation to the nature of an appeal under s 53(3)(b) (at [105]):
“ … the legislature chose to limit the right of appeal on a question of law alone (and only by leave of the Supreme Court) to ‘an interlocutory order’ made by the Local Court in relation to a person in summary proceedings. The legislature chose not to extend the right of appeal to an interlocutory ‘decision’ or to an interlocutory ‘judgment’.”

In LS v Director of Public Prosecutions (NSW) and Anor [2011] NSWSC 1016, Johnson J considered an appeal by a juvenile charged with a criminal offence against a decision of a Magistrate ruling that it was not open to the juvenile's mother to object under s 18 of the Evidence Act 1995 (NSW) to being called as a prosecution witness. Johnson J accepted (at [114]) that s 53(3)(b) of the CAR Act did not apply as a ruling on evidence does not answer the description of an“interlocutory order”. His Honour observed at [112] that s 53(3)(b) does not confer jurisdiction on the Supreme Court to grant leave to appeal against an “interlocutory decision”. In support of the proposition, his Honour cited Salter v Director of Public Prosecutions (NSW) (at 396 [32]).
[…]
I have had regard to the principles derived from the authorities to which R A Hulme J referred in AF v R at [31] regarding the meaning of “order”. One of the reasons for the courts having determined that a ruling on evidence is not an “order” of the court is that it can be changed during the course of the proceedings and lacks finality. It does not require a decision of an appellate court to reverse it. Nor do such rulings conclude the rights of the parties before the hearing is completed. His Honour went on at [32] to observe that the ruling in AF v R that the witness, who was found to be a vulnerable witness within the meaning of s 306M of theCriminal Procedure Act, could give her evidence in chief by way of a recorded interview had the same character as a procedural ruling that did not finally dispose of any discrete part of the proceedings. His Honour contrasted the decision under consideration in AF v R with that in R v RAG , which was a ruling that a child complainant was not competent to give evidence. The effect of that decision was that the complaint would not give evidence at all, which, as his Honour pointed out at [32], had the effect that something “not be done”.

It may be concluded that an “order” has a narrower meaning than “direction”, “decision”, or “judgment”.
It is necessary to be clear about what was asked of the Magistrate in this matter, and what his Honour decided.
The Amended Application sought “an order” that a female Magistrate hear the plaintiff’s trial; “an order” that men be excluded from the courtroom when the search footage was played, and that the evidence “not be disclosed” to men; alternatively, a change of venue; or a permanent stay. His decision was not “to grant any of these applications”, entered on the court’s record as “Defence application refused”.
The first application related to what can best be described as an issue of practice or procedure, being the gender of the presiding judicial officer. The plaintiff submitted that the power to make the order as sought was derived from ss 28 and 44 of the LC Act, r 4.3 of the LC Rules, and the court’s implied jurisdiction.
Looking at the nature of these provisions is informative in determining whether his Honour’s refusal to grant the application for a female Magistrate to hear the case was an “interlocutory order”. Section 28 of the LC Act provides:

28 Court may give directions in circumstances not covered by rules
(1) In relation to particular proceedings, the Court may give directions with respect to any aspect of practice or procedure not provided for by or under this Act, the Criminal Procedure Act 1986, the Civil Procedure Act 2005 or any other Act.
(2) Anything done in accordance with such a direction (including the commencing of proceedings and the taking of any step in proceedings) is taken to have been validly done.

This is a power to “give directions” with respect to “practice and procedure”. It does not provide a power to make an “order” of the nature of a command, interlocutory or otherwise.
Part 4 of the LC Act confers a “Special jurisdiction” on the Local (and Children’s) Court and applies to “application proceedings”. It has no application in criminal proceedings, as the proceedings before the Children’s Court were. “Application proceedings” are defined by s 43 and s 44 to mean “proceedings with respect to matters for which jurisdiction is conferred on the Court by or under any other Act or law”, other than “criminal proceedings” (or civil proceedings under Part 3 of the LC Act).
It is of no significance that the plaintiff made an “Application” to the Children’s Court; the use of that word does not automatically invoke the jurisdiction of the Court under Part 4 of the LC Act. The plain fact is that the proceedings before the Children’s Court were criminal proceedings, and thus specifically excluded from the operation of Part 4. That is clear if one looks to the balance of Part 4, which relates to the commencement (by “application notice”) and hearing of application proceedings.
Section 45, for example, provides for the commencement of application proceedings by “filing an application notice in accordance with this Division”. Pursuant to s 72(4), an application notice must do three things:

(4) An application notice must do the following:
(a) describe the grounds for the proceedings and the remedy sought,
(b) contain the name of the applicant,
(c) require the respondent to appear before the Court or a Magistrate at a specified date, time and place.

Whilst the “Amended Application to the Local Court”, purportedly issued by the plaintiff pursuant to s 45 of the LC Act, named the applicant and described the grounds for the application (but not proceedings) and the orders (but not the remedy) sought, it did not require the respondent to appear before the Court or Magistrate at a specified date.
Thus, even if Part 4 of the LC Act applied to criminal proceedings, which I have concluded it does not, there was no valid commencement of any “application proceedings”. Section 44 of the LC Act did not provide any power for the Magistrate to make the order sought by the plaintiff and cannot support a conclusion that the court made an “interlocutory order”.
Rule 4.3 of the LC Rules is located in Part 4 of the Rules, a Part which deals with “Application proceedings”. It is noted that Part 3 of the LC Rules deal with criminal proceedings.
Although, in my conclusion, r 4.3 cannot have application to criminal proceedings such as those before the Children’s Court relevant to TR, even assuming the rule does apply, its terms are not such as to support a conclusion that the Magistrate made an “interlocutory order” pursuant to this provision. It provides:

4.3 Management powers
(1) The Court may make any orders the Court thinks fit for the just, efficient, effective and timely management of proceedings before the Court.
(2) Without limiting subrule (1), the Court may make any of the following orders:
(a) an order fixing a timetable for the taking of steps to prepare a matter for hearing,
(b) an order adjourning the proceedings to enable the matter of the application to be the subject of a mediation session under the Community Justice Centres Act 1983,
(c) an order that a document may be filed with the Court in electronic form,
(d) an order that there be an exchange of written statements of the intended evidence of each witness,
(e) an order as to the use of statements referred to in paragraph (d),
(f) an order for the preparation and filing of a statement of agreed facts and agreed issues,
(g) an order for the preparation and filing of an agreed list of exhibits (with such list to be page numbered and indexed in appropriate order),
(h) an order for the preparation of written submissions on any question of law raised in the proceedings.

Whilst the rule allows for a Magistrate to make a variety of “orders”, these are all orders relevant to the management of the court’s business and procedural matters. They are not orders with the character of command that determine with finality at least an aspect of the matter before the court.
As to the Children’s Court’s implied power, and bearing in mind that the court derives its jurisdiction from statute, I am very doubtful that there is any implied power that would permit one magistrate to order another magistrate to hear a particular case. There is a statutory power for the Chief Magistrate to give directions as to the work of magistrates (s 23(1)(a) of the LC Act), but that provision did not apply to Magistrate Halburd and is not, in any event, the basis of a power to make an order of the kind encompassed by s 53(3)(b) of the CAR Act.
I am not persuaded that in refusing to grant the plaintiff’s application, for a female Magistrate to hear her trial, his Honour was making an interlocutory order that is amenable to the jurisdiction conferred on this Court pursuant to s 53(3)(b). If I am wrong in that decision, I have concluded that his Honour had no power to grant the application, and thus there could be no error of law in his refusal to do so.
The second application made by TR to the Children’s Court was an application for “an order” that men be excluded from the courtroom when the search footage was played, and that the evidence “not be disclosed” to men. His Honour refused to grant the application.
The plaintiff relies upon the same heads of powers referred to in [56]. I have already concluded that s 28 of the LC Act provides only for a power to give directions as to matters of practice and procedure, rather than to make an “order” of the nature to which s 53(3)(b) applies. Neither does it, in my conclusion, provide a power to exclude all men from the courtroom when the search footage is played, or to prohibit disclosure of the evidence to any person of the male gender. Section 44 of the LC Act and r 4.3 of the LC Rules have no relevance as they do not apply to criminal proceedings. Neither provision gave the Magistrate a power to make an order of the sort contemplated by s 53(3)(b) of the CAR Act.

The Children’s Court has a specific power to limit the persons present in the courtroom when criminal proceedings are heard. Section 10(1) and (2) of the Children (Criminal Proceedings) Act provide:

10 Exclusion of general public from criminal proceedings
(1) While a court is hearing criminal proceedings to which a child is a party—
(a) any person (other than a person referred to in paragraph (b) or (c)) who is not directly interested in the proceedings is to be, unless the court otherwise directs, excluded from the place where the proceedings are being heard, and
(b) any person who is engaged in preparing a report on the proceedings for dissemination through a public news medium is, unless the court otherwise directs, entitled to enter or remain in the place where the proceedings are being heard, and
(c) any family victim is entitled to enter or remain in the place where the proceedings are being heard.
(2) While a court is hearing criminal proceedings to which a child is a party, the court may direct any person (other than the child or any other person who is directly interested in the proceedings or a family victim) to leave the place where the proceedings are being heard during the examination of any witness if the court is of the opinion that it is in the interests of the child that such a direction should be given.

Although the general public is routinely excluded from proceedings before the Children’s Court that does not mean that the principles of open justice are irrelevant. Persons directly interested in the proceedings, such as complainants and witnesses, are not excluded. The relatives of a deceased victim of an offence are not excluded and, “unless the court otherwise directs”, neither are journalists excluded from being present during proceedings, as long as their presence is for the purpose of preparing a report for dissemination through a public news medium.
Whilst s 10(2) allows the court to direct persons to leave the court during the examination of a witness (with some exceptions), that could not include a direction to exclude the Magistrate hearing the case, the witness who was being examined, or the legal representatives of the parties.
This provision could not then provide a power for the Magistrate to give a direction excluding all persons of the male gender from the courtroom at any time when the search footage is played. Nor can it provide a power to suppress evidence.
The Suppression Act provides a power to suppress evidence, or prohibit its publication. A suppression order is defined as an order that prohibits or restricts the disclosure of information (by publication or otherwise). A non-publication order is defined as an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information). Section 7 provides the power to make either order:

7 Power to make orders
A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of:
(a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or
(b) information that comprises evidence, or information about evidence, given in proceedings before the court.

A non-publication order may only be made if one or more of the grounds referred to in s 8 are made out. Section 8 provides:

8   Grounds for making an order
(1) A court may make a suppression order or non-publication order on one or more of the following grounds:
(a)  the order is necessary to prevent prejudice to the proper administration of justice,
(b)  the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,
(c)  the order is necessary to protect the safety of any person,
(d)  the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency),
(e)  it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.
(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.
(3) Despite subsection (1) (d), a court may make a suppression order or non-publication order on the grounds that the order is necessary to avoid causing undue distress or embarrassment to a defendant in criminal proceedings involving an offence of a sexual nature only if there are exceptional circumstances.

In determining whether to make a non-publication order, the court must have regard to s 6 of the Act, which provides:

6 Safeguarding public interest in open justice
In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

Section 14 of the Act provides for a process of appeal or review of an order made, or not made, under the Act:

14   Appeals
(1) With leave of the appellate court, an appeal lies against:
(a)  a decision of a court (the original court) to make or not to make a suppression order or non-publication order, or
(b)  a decision by the original court on the review of, or a decision by the original court not to review, a suppression order or non-publication order made by the court.

(2) The appellate court for an appeal under this section is the court to which appeals lie against final judgments or orders of the original court or, if there is no such court, the Supreme Court.
(3) Each of the following persons is entitled to appear and be heard on an appeal under this section:
(a)  the applicant for the suppression order or non-publication order,
(b)  a party to the proceedings in which the order or decision subject to appeal was made,
(c)  the Government (or an agency of the Government) of the Commonwealth or of a State or Territory,
(d)  a news media organisation,
(e)  any other person who, in the appellate court’s opinion, has a sufficient interest in the decision that is the subject of appeal.

(4) On an appeal under this section, the appellate court may confirm, vary or revoke the order or decision subject to the appeal and may make any order or decision under this Act that could have been made in the first instance.
(5) An appeal under this section is to be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.
(6) If judgments or orders of the original court are subject to review by another court (rather than appeal to another court), this section provides for a review of the original court’s decisions instead of an appeal and in such a case references in this section to an appeal are to be read as references to a review.

An appeal against “a decision of the Children’s Court to make or not to make” an order pursuant to s 7 lies to the District Court (with no appeal of that nature being pursued).
It would be open to the Children’s Court to make suppression and non-publication orders prohibiting the disclosure and publication respectively of the search footage, but such an order would not prevent the footage being played during the proceedings, in the presence of the Magistrate, any relevant witness, and legal representatives, whatever the gender of those individuals. None of the grounds referred to in s 8 are apposite to a “blanket” gender-based order.
Whilst the Suppression Act provides a power to make suppression and non-publication orders where a basis exists to do so pursuant to s 8 of the Act, it does not provide a power to make an order of the sort the plaintiff applied for – to exclude male persons, whether witnesses, legal representatives, or a judicial officer – from viewing the footage in the course of proceedings. The Magistrate’s refusal to exclude men from the courtroom when the footage was played, or prohibit later disclosure (presumably including to any male judicial officer should the matter proceed on appeal) was not a refusal to make an order under this Act.
It is noted that the Children’s Court does not have the sort of power exercised by the Federal Court in the Native Title cases relied upon by the plaintiff.
Whilst an order in the terms sought by the applicant in this regard may be an “interlocutory order”, the Children’s Court had no power to make it. There can be no error in declining to make an order without power.
The third application, for a change of venue, is an interlocutory order, and one which the Children’s Court had power to make, pursuant to s 20 of the Children’s Court Act 1987 (NSW) and s 30 of the Criminal Procedure Act 1986 (NSW). No error of law was specifically pointed to in relation to this application, and no specific argument was addressed to it. All four grounds are relied upon. I turn to the grounds advanced now.
By ground 1 the plaintiff argues that the Magistrate erred in determining the application on the basis that witnesses needed to observe the footage. This ground can be quickly dealt with because it mistakes the conclusions of the Magistrate in that regard.
The transcript of the proceedings demonstrates that the Magistrate was at pains from the first mention of the matter before him to urge the parties to agree upon a means of tendering the relevant evidence to the trial court without playing the disputed part of the search recordings. He did not conclude either that it was necessary for the court to view the footage, or for witnesses to do so (despite Ms Winn in each of her written submissions, and in ground 3 of the Amended Application submitting that the footage was required and the tribunal of fact would need to observe the footage).
The Magistrate’s conclusion was that he could not constrain the prosecution from tendering and playing the footage in its case. He said,

[…] I am told that five of the witnesses who are required for cross-examination are male. It seems to me that it would be entirely inappropriate to constrain the ability of the prosecution to properly present its case, by preventing those officers from commenting on video tape of what, as I understand, is alleged that they were present for.

I cannot discern any error of law in that conclusion. His Honour was correct in concluding that he could not constrain the prosecution from presenting its case as it saw fit, particularly since the evidence of the search was relevant, there was no objection to its admissibility, and no application was made for its exclusion under the Evidence Act. The plaintiff’s application was to exclude men from the proceedings, including any male magistrate or witness. That was not an order his Honour had power to make.
Although I am not persuaded that the Magistrate failed to consider “the reduction in harm” to the plaintiff if the orders were made, as his Honour specifically referred to the distress caused to TR and her family by the evidence and the proceedings, since there was no power to make the orders, there could be no error even if his Honour had failed to consider these matters.
That aspect of ground 1 that relates to the asserted exclusion of evidence is considered in relation to ground 3.
Ground 1 cannot be made out. This conclusion also disposes of ground 4, which rests upon the same contention as ground 1, a contention that I have concluded is erroneous.
By ground 2 the plaintiff contends that the Magistrate failed to properly take account of her circumstances. Expressed in this way the ground contains a concession that some regard was paid to the plaintiff’s circumstances. In my conclusion, his Honour was cognisant of the plaintiff’s position, and took it into account insofar as that was possible. There was no error of the nature complained of by TR.
The Magistrate’s reasons record that he had regard to TR’s age, her Aboriginality, her cultural background, and the distress that she felt at the proceedings before the court and the prospect of men seeing images of her body. His Honour noted the evidence of Ms Bruton in this regard, and that of Ms S.
However, as I have already concluded, the Magistrate did not have the power to make the orders sought. No error of law has been established.
By ground 3 the plaintiff contends that the Magistrate erred in refusing to admit the evidence of Ms Bruton and Ms S. I am unable to agree that his Honour did exclude that evidence.
Although senior counsel for the plaintiff was critical of his Honour’s reasons in this regard, it must be borne in mind that the reasons were delivered ex tempore, in the course of hearing many other matters before the court, and in circumstances where the proximity of the hearing date and the need for the parties to have certainty did not admit of the luxury of his Honour reserving his reasons and orders to consider them at length. In considering whether the error complained of can be demonstrated, it is necessary to read his Honour’s reasons fairly, and making allowance for the features of an ex tempore judgment. If the conditions under which District Court judges deliver ex tempore reasons “are not such as to permit their remarks to be parsed and analysed”, as observed in R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566, at [48], 577, how much more so is that the case for magistrates sitting in busy lists in the Local and Children’s Courts.
Although his Honour did refer to what he saw as issues with the admissibility of the evidence, both in exchange with Ms Winn on 2 September 2019 and in his reasons, he did not exclude the evidence. Instead, having noted his reservations about it (which were in my view well founded), he set out the evidence of both Ms Bruton and Ms S, and referred to what each had said in his reasons. That is, he had regard to the evidence and took it into account in determining the application, although likely according it little weight. That course was open to him, for the reasons his Honour gave. No error of law is established.
Insofar as any of the grounds relate to a change of venue, I do not regard them as establishing an error of law in his Honour’s decision to refuse the application to list the matter at Griffith Children’s Court. The Magistrate was correct in concluding that, if the prosecution could not be constrained in the way it presented its case, and as many as five male witnesses might view the search footage, there was no utility in a change of venue, even if a female magistrate was available at Griffith to hear the case (an outcome in no way guaranteed by a change of venue). The refusal of the Magistrate to direct a change of venue was well open to him, having regard to the delay and inconvenience to witnesses (all based in the Wagga Wagga are) that would follow.
There remains the alternative basis upon which the plaintiff seeks review of the decision of the Magistrate, review pursuant to s 69 of the Supreme Court Act. The section relevantly provides:

69   Proceedings in lieu of writs
(1) Where formerly:
(a)  the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or
(b)  in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course,

then, after the commencement of this Act:
(c)  the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but
(d)  shall not issue any such writ, and
(e)  shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and
(f)  proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules.

(2) […]
(3) The jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes, if the Court is satisfied that the ultimate determination of a court or tribunal in any proceedings has been made on the basis of an error of law that appears on the face of the record of the proceedings:
(a) jurisdiction to quash the ultimate determination of the court or tribunal, and
(b) if the Court determines that, as a matter of law, only one particular determination should have been made by the court or tribunal, jurisdiction to make such judgment or orders as are required for the purpose of finally determining the proceedings.

(4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination.
(5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision.

The plaintiff did not specifically address in her submissions how the four grounds advanced would establish error on the face of the record in the ultimate determination of the court to enliven the Court’s jurisdiction under s 69.
In any event, s 69 deals with errors of law. For the reasons set out above, I am not satisfied that any error of law has been established. Excluding a direction for a change of venue, his Honour did not have the power to make the orders sought, and he could not be in error for refusing to make orders he had no power to make. Whilst there was power to direct a change of venue, none of the grounds advanced in support of the plaintiff’s appeal against the refusal to make the order have been made out.
Foundation for relief has not been established. Whilst I would grant leave pursuant to s 53(3)(b) of the CAR Act to appeal with respect to those matters involving an interlocutory order, no error of law has been made out, and there is no basis to interfere with the decision of the Children’s Court, pursuant to that Act, or the Supreme Court Act.

Conclusion

It follows that, for the reasons set out above, I would dismiss the plaintiff’s summons.
There is a “need for recognition of the importance of cultural and gender-based adjustments” in dealing with matters before the courts, as the plaintiff submitted. However, those considerations are secondary to the public interest in the proper administration of justice. The significant public interest in the resolution of criminal proceedings will frequently outweigh and qualify the protection of an individual’s interests in maintaining a cultural tradition, privacy, and even modesty. That is the case in many criminal matters. An example is in the determination of sexual assault allegations, where both the complainant and the accused person may have to give detailed evidence about very personal and intimate matters, and even endure the humiliation in some circumstances of having photographs or footage of their bodies displayed in a courtroom.
Here, the Magistrate urged the parties to a practical resolution of the issues, a resolution that, with good will, should readily be able to be reached. Since the question of the legality of the strip search of TR’s person is founded by what took place prior to the commencement of the search, there should be no need for the few seconds of sensitive footage to be shown in court, as his Honour observed. If there is a need, it should be possible to pixilate or otherwise obscure the images of TR’s torso.
The prosecutor was prepared to ensure that, as a matter of rostering, a female police prosecutor would have the conduct of the hearing before the Children’s Court. His Honour told the parties that female court staff would be allocated to the courtroom. Since the matter will now have to be listed for hearing (subject to the COVID-19 procedures adopted in the Children’s Court) it may be that the matter can be listed when a female magistrate is sitting at Wagga Wagga.

In this practical way, a balance can be struck between the need for a criminal case to be heard, and the need to address TR’s understandable distress at the prospect of men seeing sensitive footage of her.

Costs

Without intending to prejudge the matter, I would not ordinarily make an order for costs. The plaintiff is a child, and her legal representation is publically funded, as is the representation of the defendants. My preliminary view is that each party should bear her, his, or its own costs.

orders

The Court makes the following orders:

Leave to appeal the refusal for a change of venue is granted.

Summons dismissed.

Subject to order 3, no order as to costs

Should any defendant seek an order for costs, written submissions in support are to be filed by email to my Chambers, and served, by 4pm on 17 April 2020. Any submission in reply is to be filed by email to my Chambers, and served, by 4pm on 29 April 2020. Any application will be dealt with on the papers.

*********

Decision last updated: 09 April 2020

Medium Neutral Citation:	TR v Constable Cox & Ors [2020] NSWSC 389
Hearing dates:	1 April 2020
Date of orders:	09 April 2020
Decision date:	09 April 2020
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	1. Leave to appeal the refusal for a change of venue is granted. 2. Summons dismissed 3. Subject to order 4, no order as to costs 4. Should any defendant seek an order for costs, written submissions in support are to be filed by email to my Chambers, and served, by 4pm on 17 April 2020. Any submission in reply is to be filed by email to my Chambers, and served, by 4pm on 29 April 2020. Any application will be dealt with on the papers.
Catchwords:	STATUTORY APPEAL – appeal from a decision of the Local Court under s 53(3)(b) Crimes (Appeal and Review) Act – refusal of a magistrate to grant applications – applications for a female magistrate to hear summary criminal proceedings – application to exclude men, including male witnesses, from access to evidence – application for a change of venue – question of interlocutory orders – jurisdiction of the Court – question of whether Magistrate failed to consider cultural beliefs of plaintiff – question of rejection of evidence – denial of procedural fairness JUDICIAL REVIEW – s 69 Supreme Court Act - error of law on the face of the record – question of error of law
Legislation Cited:	Children (Criminal Proceedings) Act 1987 (NSW) Court Suppression and Non-Publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Criminal Appeal Act 1912 (NSW) Evidence Act 1995 (NSW) Local Court Act 2007 (NSW) Supreme Court Act 1970 (NSW)
Cases Cited:	Anson v Director of Public Prosecutions (2002) 129 A Crim R 328 Da Silva v R [2016] NSWCCA 40 Jango v Northern Territory of Australia [2003] FCA 1230 Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126 Northern Territory of Australia v Griffiths (No 2) (2019) 93 ALJR 803; 368 ALR 77; [2019] HCA 19. Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) 147 CLR 35 Re Lake Torrens Overlap Proceedings (No 2) [2015] FCA 1195. Russell v Scott & Anor [2017] NSWSC 1720 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 Salter v Director of Public Prosecutions (NSW) (2009) 75 NSWLR 392 Ward v Zimmer [2015] NSWSC 525 Western Australia v Ward (1997) 76 FCR 492; 145 ALR 512; [1997] FCA 585
Category:	Principal judgment
Parties:	TR (Plaintiff) Constable Michael Cox (First Defendant - Submitting Appearance) Children’s Court of New South Wales (Second Defendant – Submitting Appearance) Attorney General for New South Wales (Third Defendant)
Representation:	Counsel: Ms C Ronalds SC with Ms R Khalilizadeh (Plaintiff) Dr D Kell with Ms J Caldwell (Third Defendant) Solicitors: Aboriginal Legal Service NSW/ACT (Plaintiff) Crown Solicitors Office (First Defendant) State Crown Solicitor- K Smith (Second Defendant) State Crown Solicitor- L Nichols (Third Defendant)
File Number(s):	2019/00304946
Publication restriction:	The plaintiff cannot be identified other than by “TR”.