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Court of Criminal Appeal 6 November 2014

The Application of the Attorney General for New South Wales dated 4 April 2014

[2014] NSWCCA 251

Also reported as (2014) 246 A Crim R 150
Public order & justice offences
CRIMINAL LAW PROCEDURE PRINCIPLE OF LEGALITY LIMITS ON LEGISLATIVE POWER OF STATES

Citation: The Application of the Attorney General for New South Wales dated 4 April 2014 [2014] NSWCCA 251
Court: NSW Court of Criminal Appeal
Date: 6 November 2014
Judges: Beazley P; Macfarlan JA (principal judgment); Bellew J

Background

An accused person was tried in the Common Law Division of the Supreme Court for the murder of a child. Before trial, the accused issued subpoenas to the Department of Family and Community Services (the Department) seeking production of reports about the deceased child made under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Act).

The Department objected, relying on s 29 of the Act, which provides protections for persons who make reports in good faith to the Director-General about children or young persons. The trial judge rejected that objection and ordered production of the reports. The trial proceeded as a judge-alone trial and the accused was acquitted.

Following the acquittal, the Attorney General referred three questions of law to the Court of Criminal Appeal under s 108 of the Crimes (Appeal and Review) Act 2001 (NSW). That mechanism allows unresolved legal questions from a concluded trial to be determined for future guidance, without disturbing the acquittal. Because the acquitted person had no personal stake in the outcome, the Attorney General funded independent counsel to argue the questions on the accused's behalf.

  • Whether s 29 of the Act, properly construed, precluded the Supreme Court from ordering the Department to produce child protection reports in response to a subpoena issued by the accused.
  • Whether the principle of legality required s 29 to be read down so as not to interfere with the accused's right to a fair trial.
  • Whether the Department was a "person" within the meaning of s 29(1)(e), such that the subpoena could lawfully be directed to it.
  • Whether, if s 29(1)(e) did preclude such an order, it was constitutionally invalid under the principles in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 as incompatible with the institutional integrity of the Supreme Court.

Decision

The Court answered all three questions in the negative, concluding that the trial judge had not erred. Macfarlan JA wrote the principal judgment, with Beazley P and Bellew J agreeing.

On the statutory construction question, the Court held that s 29 is directed at protecting the identity of persons who make reports to the Department, not at shielding the contents of those reports from disclosure altogether. The protections afforded by s 29 are not absolute. Applying the principle of legality (the common law rule that fundamental rights are not abrogated by general statutory words unless the legislature has done so with unmistakable clarity), the Court held that s 29(1)(e) must be read down so as not to prevent an accused from compelling production of relevant reports by subpoena. The legislature had not expressed any such intention with the required degree of clarity.

On whether the Department was a "person" for the purposes of s 29(1)(e), the Court held that it was. The word "person" includes a body politic, and New South Wales state government departments are manifestations of the Crown in right of the State, which is itself a body politic.

On the constitutional question, the Court assumed (for the purposes of argument) that s 29(1)(e) could be construed as precluding an order for production, and considered whether it would then be invalid under Kable. The Court held it would not be. State Parliaments retain authority to regulate criminal trials, including by enacting laws governing evidence and procedure. Section 29(1)(e) reflected a rational attempt to balance the competing objectives of encouraging reporting of child welfare concerns and ensuring accused persons receive fair trials. Such a provision, even if it eroded an accused's procedural rights to some degree, did not interfere with the institutional integrity of the Supreme Court in a manner repugnant to the judicial process.

Orders Made

• Negative answers given to each of the three questions submitted by the Attorney General regarding the trial judge's construction of s 29 of the Children and Young Persons (Care and Protection) Act 1998 and the order for production
• No order for costs made

Key Takeaways

  • The principle of legality requires that general statutory words not be construed as abrogating an accused's right to a fair trial unless the legislature has expressed that intention with irresistible clearness or unmistakable and unambiguous language.

  • Section 29 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) is primarily concerned with protecting the identity of reporters, not with creating an absolute bar on production of the contents of reports in criminal proceedings.

  • Under the Interpretation Act 1987 (NSW), the word "person" in s 29(1)(e) encompasses a body politic, meaning subpoenas directed to NSW government departments fall within the section's scope.

  • A State law that regulates or restricts an accused's access to third-party documents in criminal proceedings is not automatically invalid under Kable principles. The question is whether the law is so arbitrary or manifestly disproportionate that it undermines the institutional integrity of the Supreme Court. The Court of Criminal Appeal found no such defect here.

  • Negative answers to all three questions mean the trial judge's approach, treating the accused's right to compel production of relevant reports by subpoena as surviving s 29, has been confirmed as correct by the Court of Criminal Appeal.

Legislation and Cases Referenced

Legislation:
- Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 8, 24, 25, 27, 29, 120, 121, 122
- Crimes (Appeal and Review) Act 2001 (NSW), s 108
- Interpretation Act 1987 (NSW), ss 21, 34, 35

Cases:
- Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51
- Coco v The Queen [1994] HCA 15; 179 CLR 427
- Alister v The Queen [1984] HCA 85; 154 CLR 404
- Nicholas v The Queen [1998] HCA 9; 193 CLR 173
- International Finance Trust Company Ltd v NSW Crime Commission [2009] HCA 49; 240 CLR 319
- X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92
- KS v Veitch (No 2) [2012] NSWCCA 266; 84 NSWLR 172
- Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 87 ALJR 458
- Lee v New South Wales Crime Commission [2013] HCA 39; 87 ALJR 1082
- Fardon v Attorney-General for the State of Queensland [2004] HCA 46; 223 CLR 575
- Potter v Minahan [1908] HCA 63; 7 CLR 277
- Williamson v Ah On [1926] HCA 46; 39 CLR 95
- Lipohar v The Queen [1999] HCA 65; 200 CLR 485
- R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115
- Haines v Tempesta (1995) 37 NSWLR 24
- Sneddon v State of New South Wales [2012] NSWCA 351
- Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) [2011] NSWCA 363
- Pollentine v Bleijie [2014] HCA 30
- Re Nolan; Ex parte Young [1991] HCA 29; 172 CLR 460