AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Supreme Court 1 September 2017

R v Hayward

[2017] NSWSC 1170

Assault & violence
STATUTORY INTERPRETATION PRINCIPLE OF LEGALITY RIGHT TO A FAIR TRIAL ACCORDING TO LAW REFERENCE HAD TO SECOND READING SPEECH REPORTS HELD TO BE INADMISSIBLE MATTER REMITTED TO DISTRICT COURT

Citation: R v Hayward [2017] NSWSC 1170
Court: Supreme Court of New South Wales
Date: 1 September 2017
Judge(s): R A Hulme J

Background

The accused faced trial on an indictment alleging multiple offences involving the physical abuse of a young child who had been temporarily residing in her home in 2014. Two co-accused had pleaded guilty and agreed to give evidence against her. Part of the proposed defence was to challenge the credibility of the child's mother and to suggest the mother had herself inflicted more violence on the child than she admitted.

To support that defence, the accused sought to rely on material produced under subpoena by the Department of Family and Community Services. That material included information about the mother's history of injuring the child, blaming others for injuries, failing to seek medical treatment, and the removal of the mother's earlier children into care.

The matter had been committed to the District Court, but a trial there was perceived to be barred because section 29(1)(d) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) appeared to render those reports inadmissible in that court. The Acting Chief Justice granted a conditional exemption to allow the indictment to be presented in the Supreme Court, on the basis that the exemption would be withdrawn if the reports were held inadmissible there as well.

Legal Issues

  • Whether reports made to Family and Community Services under the Children and Young Persons (Care and Protection) Act 1998 are admissible in criminal proceedings in the Supreme Court, having regard to section 29(1)(d) of that Act.
  • Whether the phrase "proceedings in relation to a child or young person before the Supreme Court" in section 29(1)(d)(iii) extends to criminal proceedings where a child is the alleged victim.
  • Whether the principle of legality required section 29(1)(d)(iii) to be construed broadly to preserve the accused's right to a fair trial.
  • Whether the documentary material produced by Family and Community Services constituted "reports" or "evidence of the contents" of reports within the meaning of section 29(1)(d).

Decision

Issue 1: Admissibility of reports in criminal proceedings in the Supreme Court

The court held that section 29(1)(d) does not permit reports made to Family and Community Services to be admitted in criminal proceedings in the Supreme Court (at [59]-[66]). The court rejected the accused's argument that the words "Supreme Court" in section 29(1)(d)(iii) should be read in isolation and construed to cover all Supreme Court proceedings. Reading words in isolation from their context is contrary to established principles of statutory interpretation (at [44]-[45]).

Issue 2: Meaning of "proceedings in relation to a child or young person" in section 29(1)(d)(iii)

The court found that each category of proceedings listed across all five sub-paragraphs of section 29(1)(d) shares a common denominator: each may involve proceedings examining the care and welfare of children (at [52]-[58]). The Supreme Court falls within section 29(1)(d)(iii) by reason of its parens patriae jurisdiction and its supervisory role over the Civil and Administrative Tribunal in child welfare matters, not because it hears criminal trials involving child victims (at [55]). The phrase "proceedings in relation to a child or young person" describes proceedings directed at determining the welfare of a child, not criminal proceedings where a child is the alleged victim (at [47]-[51]).

Issue 3: The principle of legality and the 2010 amendment

The original form of section 29(1)(d) used clear and unmistakable language to exclude reports from criminal proceedings entirely (at [41]-[42]). The 2010 Amendment Act extended the class of exceptions to inadmissibility, but the Second Reading Speech and Explanatory Note made plain that the extension was confined to "child welfare proceedings" (at [48]-[51]). The court found that the accused's proposed construction would produce an absurd result: it would allow admissibility in Supreme Court criminal proceedings but not in courts such as the Children's, Local and District Courts, where criminal prosecutions involving children are far more commonly conducted (at [60]-[61]). The right to a fair trial is a right to a fair trial according to law, and Parliament has previously enacted other admissibility restrictions in criminal proceedings without those restrictions constituting a denial of that right (at [39]-[40]).

Issue 4: Whether the subpoenaed documents constitute "reports" under section 29(1)(d)

The court observed that the subpoenaed material, including internal memoranda, case summaries, referrals, affidavits, and case management plans, summarised, extracted from, or discussed what must be assumed to be original reports made to Family and Community Services. Such documents would constitute "reports" or "evidence of the contents" of reports within the meaning of section 29(1)(d) (at [62]-[64]). The court noted, however, that a final determination on this point was not strictly necessary given the primary inadmissibility ruling (at [65]).

Orders Made

  • The proceedings are remitted to the District Court of New South Wales.

Key Takeaways

  • Section 29(1)(d)(iii) of the Children and Young Persons (Care and Protection) Act 1998 does not render reports made to Family and Community Services admissible in criminal proceedings in the Supreme Court. The phrase "proceedings in relation to a child or young person before the Supreme Court" refers to proceedings directed at examining the care and welfare of children, such as parens patriae or supervisory jurisdiction matters, not criminal trials where a child is an alleged victim (at [47]-[59]).

  • The common thread running through all five categories of proceedings listed in section 29(1)(d) is that each involves proceedings examining the care and welfare of children. That contextual thread controls the interpretation of individual sub-paragraphs, including the reference to the Supreme Court (at [52]-[58]).

  • Under the principle of legality, Parliament must use clear and unmistakable language to abrogate the right to a fair trial. The court found that the original form of section 29(1)(d) satisfied that standard by unambiguously excluding reports from criminal proceedings, and the 2010 Amendment Act did not change that position with respect to criminal proceedings (at [41]-[43]).

  • Extrinsic materials, including a Second Reading Speech, may be used under section 34 of the Interpretation Act 1987 (NSW) to confirm or resolve the meaning of an ambiguous provision, and may displace a construction that would otherwise lead to a manifestly absurd result (at [33], [48]-[51]).

  • Documents such as internal memoranda, case summaries, and case management plans that summarise, extract from, or discuss original reports made to Family and Community Services are likely to constitute "reports" or "evidence of the contents" of reports within the meaning of section 29(1)(d), and therefore attract the same inadmissibility (at [62]-[64]).

Legislation and Cases Referenced

Legislation
- Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29
- Children's (Criminal Proceedings) Act 1987 (NSW) s 15A
- Coroners Act 2009 (NSW)
- Criminal Procedure Act 1986 (NSW) s 128(2), Ch 6 Pt 5 Div 2
- Family Law Act 1975 (Cth)
- Interpretation Act 1987 (NSW) s 34
- Victims Rights and Support Act 2013 (NSW)

Cases
- Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27
- AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028
- Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; 57 NSWLR 113
- Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; 226 FLR 388
- Director General, Dept of Family and Community Services v FEW [2013] NSWSC 1448
- Huntlee Pty Ltd v Sweetwater Action Group Inc; Minister for Planning and Infrastructure v Sweetwater Action Group Inc [2011] NSWCA 378
- Osborne v R [2014] NSWCCA 17; 238 A Crim R 417
- Police v Dunstall [2015] HCA 26; 256 CLR 403
- Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
- R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115
- TF v Department of Family & Community Services [2015] NSWSC 694
- The Application of the Attorney General for New South Wales dated 4 April 2014 [2014] NSWCCA 251; 246 A Crim R 150
- Undershaft (No 1) Ltd v Federal Commissioner of Taxation [2009] FCA 41; 175 FCR 150