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Court of Criminal Appeal 4 June 2018

Hayward v R

[2018] NSWCCA 104

Also reported as (2018) 97 NSWLR 852
Public order & justice offences
STATUTORY INTERPRETATION PRINCIPLE OF LEGALITY ACCUSED’S RIGHT TO A FAIR TRIAL PRECEDENT WHETHER THE APPLICATION OF THE ATTORNEY

Citation: Hayward v R [2018] NSWCCA 104
Court: NSW Court of Criminal Appeal
Date: 4 June 2018
Judges: Bathurst CJ; Hoeben CJ at CL; Price J; Fullerton J; Garling J

Background

The applicant faced charges in the District Court involving serious physical abuse of a young child. Before trial, he obtained documents from the Department of Family and Community Services (DFACS) by subpoena. Those documents included reports made to the Department about the victim and risk assessments concerning the victim and his mother, with the identities of reporters redacted.

The applicant argued that section 29(1)(d) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act) rendered those documents inadmissible in the District Court. He further argued, however, that an exception in section 29(1)(d)(iii) would make them admissible if the proceedings were brought in the Supreme Court, which covers "proceedings in relation to a child or young person before the Supreme Court." On that basis, he successfully obtained a conditional transfer of the proceedings to the Supreme Court.

A preliminary hearing was held before the primary judge in the Supreme Court to determine admissibility. The primary judge found the documents inadmissible and remitted the matter back to the District Court. The applicant sought leave to appeal that ruling to the Court of Criminal Appeal.

  • Whether the phrase "any proceedings" in section 29(1)(d) of the Care Act encompasses criminal proceedings, or is limited to civil or child welfare proceedings.
  • Whether criminal proceedings on indictment in the Supreme Court, where a child is the victim of alleged offences, constitute "proceedings in relation to a child or young person before the Supreme Court" within the meaning of section 29(1)(d)(iii), so as to attract the exception to the general inadmissibility rule.
  • Whether the Court of Criminal Appeal should depart from its earlier decision in The Application of the Attorney-General for New South Wales dated 4 April 2014 [2014] NSWCCA 251, which had addressed related questions about section 29(1)(e).

Decision

The Court unanimously granted leave to appeal but dismissed the appeal, upholding the primary judge's ruling that the subpoena material was inadmissible.

On the first issue, the Court held that "any proceedings" in section 29(1)(d) does encompass criminal proceedings. The ordinary meaning of the phrase, the legislative history of section 29, and the protective purposes of the Care Act all pointed in the same direction. Applying the principle of legality, the Court considered whether the legislature had clearly intended to abrogate an accused's right to a fair trial. It concluded that those factors together demonstrated with "irresistible clearness" that Parliament intended to exclude reports and evidence of their contents from criminal proceedings, notwithstanding any impact on the accused.

On the second issue, the Court held that the exception in section 29(1)(d)(iii) does not extend to criminal proceedings on indictment merely because a child happened to be the victim. The phrase "proceedings in relation to a child or young person" was construed narrowly: it covers only proceedings that directly affect the legal rights and interests of a child, or proceedings that concern the welfare of a child, such as care and protection proceedings. A criminal prosecution of an adult for offences against a child does not meet that description.

The Court declined to follow the earlier decision in The Application of the Attorney-General [2014] NSWCCA 251 in so far as it bore on the construction of section 29(1)(d). The Court noted it was unnecessary to determine whether that decision was "plainly wrong," because the relevant question could be resolved on the ordinary meaning and legislative history of the provision. Although this produced a difference in the meaning of "any proceedings" as between subsections 29(1)(d) and 29(1)(e), the Court found the two provisions could still operate coherently together.

Orders Made

• Grant the applicant leave to appeal.
• Dismiss the appeal.
• Remit the proceedings to the District Court of New South Wales at Sydney on 15 June 2018.

Key Takeaways

  • The phrase "any proceedings" in section 29(1)(d) of the Care Act is broad enough to include criminal proceedings, meaning the general prohibition on admitting child protection reports applies in criminal trials, not only in civil or welfare contexts.
  • Under section 29(1)(d)(iii), "proceedings in relation to a child or young person before the Supreme Court" is limited to proceedings that directly affect the legal rights, interests, or welfare of a child, such as care and protection proceedings. Criminal prosecutions of adults for offences against a child do not fall within this category.
  • The principle of legality, which guards against statutory abrogation of fundamental rights including an accused's right to a fair trial, did not assist the applicant here. The Court of Criminal Appeal found the legislative intention to exclude such reports from criminal proceedings sufficiently clear to displace any argument based on that principle.
  • In dismissing the appeal, the Court declined to follow its earlier decision in The Application of the Attorney-General [2014] NSWCCA 251 on the construction of section 29(1)(d), while leaving open whether that decision was "plainly wrong" in the conventional sense required to depart from prior authority.
  • Fullerton J, who had authored the primary judge's decision in FEW and sat on the earlier Court of Appeal decision, noted that the comprehensive review of legislative history in this case informed her agreement with the Chief Justice, notwithstanding the apparent tension with her earlier reasoning.

Legislation and Cases Referenced

Legislation:
- Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 8, 29(1)(d), 29(1)(d)(iii), 29(1)(e)
- Criminal Procedure Act 1986 (NSW), s 128(2)
- Criminal Appeal Act 1912 (NSW), s 5F(3)(a)
- Crimes Act 1900 (NSW), ss 35(1), 41, 59(2), 86(2)(a)
- Children and Young Persons (Care and Protection) Amendment Act 2010 (NSW)
- Children (Care and Protection) Act 1987 (NSW)
- Interpretation Act 1987 (NSW)

Key Cases:
- The Application of the Attorney-General for New South Wales dated 4 April 2014 [2014] NSWCCA 251 (not followed)
- Director-General, Department of Family and Community Services v FEW [2013] NSWSC 1448 (not followed)
- Coco v The Queen (1993) 179 CLR 427
- Lee v New South Wales Crime Commission (2013) 251 CLR 196
- Alister v The Queen (1983) 154 CLR 404
- PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301
- Gett v Tabet (2009) 254 ALR 504
- Bropho v Western Australia (1990) 171 CLR 1
- Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355