Citation: Director General, Dept of Family and Community Services v FEW [2013] NSWSC 1448
Court: Supreme Court of New South Wales
Date: 3 October 2013
Judge(s): Fullerton J
Background
The accused faced trial for the murder of a two-and-a-half year old child who died from a head injury in April 2011. Prior to her death, the Department of Family and Community Services had received as many as twelve separate notifications that the child was at risk of significant harm, mostly concerning alleged physical abuse by her mother.
The accused issued a subpoena requiring the Department to produce those notification files in unredacted form. The Department had already produced the documents in redacted form without objection, but resisted producing the unredacted versions. The Director General relied on s 29(1)(e) of the Children and Young Persons (Care and Protection) Act 1998, which prevents any person from being compelled in any proceedings to produce a "report" made in good faith to the Director General, or any copy or extract of it.
The Director General also tendered a certificate under s 29(1A) of the Act, which, in the absence of contrary evidence, operates as proof that the documents are "reports" within the meaning of s 29.
Legal Issues
- Whether the documents sought under subpoena were "reports" as defined in s 29(6) of the Act, and whether the accused had produced sufficient evidence to displace the statutory presumption created by the s 29(1A) certificate
- Whether, if the documents were reports, s 29(1)(e) entitled the Director General to resist production under the subpoena
- Whether the pending murder trial was a proceeding "in relation to a child or young person before the Supreme Court" within s 29(1)(d)(iii), such that the documents were at least prima facie admissible and therefore not subject to statutory privilege under the Uniform Civil Procedure Rules
Decision
Issue 1: Whether the documents were "reports" for the purposes of s 29
The accused argued that the s 29(1A) presumption was displaced because the documents, as revealed in their redacted form, were not "reports" in the relevant sense. The accused contended that s 29 protects only original risk-of-harm reports, not subsequent departmental risk assessments, internal communications, or documents generated through the Department's own work processes.
Fullerton J acknowledged that some documents did appear to be departmental records produced following investigation, rather than primary notifications. However, her Honour was not sufficiently satisfied, on the material in redacted form alone, that the documents fell outside the definition of "report" under the Act. The statutory presumption was not displaced.
Issue 2: Whether s 29(1)(e) entitled the Director General to resist production
The court considered the structure of s 29 as a whole, particularly the relationship between ss 29(1)(d) and 29(1)(e). Section 29(1)(d) sets out categories of proceedings in which a report may be admitted. Her Honour found that construing s 29(1)(e) as an absolute bar to production in all proceedings would frustrate Parliament's intention: amendments commencing in January 2011 had expanded the range of proceedings in which reports could be admitted, which would be rendered meaningless if reports could never be produced compulsorily in those same proceedings.
Issue 3: Whether the murder trial was a proceeding "in relation to a child or young person" under s 29(1)(d)(iii)
Fullerton J held that the phrase "in relation to" in s 29(1)(d)(iii) carries wide import. A murder trial in the Supreme Court where the deceased child is the named victim falls within "proceedings in relation to a child or young person before the Supreme Court." There was a sufficient connection between the child (the subject of the subpoenaed material) and the pending criminal proceedings to render the documents at least prima facie admissible. On that basis, the alternate submission that the documents were privileged under the Uniform Civil Procedure Rules was rejected.
Orders Made
- Order for the production of specified documents to the solicitors for the accused.
Key Takeaways
- The s 29(1A) certificate under the Children and Young Persons (Care and Protection) Act 1998 creates a rebuttable presumption that documents are "reports" for the purposes of s 29; displacing that presumption requires evidence sufficient to satisfy the court on the balance of probabilities, and the format or appearance of documents in redacted form alone may not be enough.
- Section 29(1)(e) does not operate as an absolute bar to the compulsory production of reports in all proceedings; its scope must be read alongside s 29(1)(d), which identifies categories of proceedings in which reports may be admitted.
- A criminal trial in the Supreme Court where the child is the named deceased victim constitutes proceedings "in relation to a child or young person before the Supreme Court" within s 29(1)(d)(iii), giving those words their wide, ordinary meaning.
- The 2010 amendments to the Act, which expanded the classes of proceedings in which reports could be admitted, informed the court's construction: a reading of s 29(1)(e) that frustrated that expansion would contradict evident parliamentary intention.
- No pre-trial ruling on the admissibility of the produced documents was made; the order went only to production under the subpoena, leaving admissibility to be determined at trial.
Legislation and Cases Referenced
Legislation
- Children and Young Persons (Care and Protection) Act 1998
- Children and Young Persons (Care and Protection) Amendment Act 2010
- Interpretation Act 1987
- Police Act 1990
- Uniform Civil Procedure Rules 2005
Cases
- Baff v New South Wales Commissioner of Police [2013] NSWSC 1205
- Sydney Water Corporation v The Persons Listed in the Schedules trading as PricewaterhouseCoopers [2008] NSWSC 361