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Court of Criminal Appeal 26 June 2019

Secretary, Department of Family and Community Services v ZL

[2019] NSWCCA 135

Sexual offences
CRIMINAL LAW SUBPOENA APPLICATION TO SET ASIDE SUBPOENA APPLICATION REFUSED IN DISTRICT COURT PURPOSE OF LEGISLATION LEGISLATION PRESCRIPTIVE

Citation: Secretary, Department of Family and Community Services v ZL [2019] NSWCCA 135
Court: NSW Court of Criminal Appeal
Date: 26 June 2019
Judges: Hoeben CJ at CL, White JA, Hamill J

Background

The respondent was an accused in District Court proceedings facing historical sexual assault charges allegedly occurring some 40 years prior. During those proceedings, it became known that the complainant had made a complaint to the Department of Family and Community Services (FACS), although neither the date nor the substance of that complaint had been disclosed to the accused.

The accused issued a subpoena directed at the Secretary of FACS, seeking production of any complaint made by the complainant to the Department concerning the alleged sexual misconduct by the accused. FACS filed a notice of motion to set aside the subpoena, arguing the documents were protected under the Children and Young Persons (Care and Protection) Act 1998 (NSW). The District Court dismissed that motion, concluding that portions of the documents fell outside the Act's definition of a "report" and could be produced after redaction.

FACS appealed to the Court of Criminal Appeal under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), seeking leave to appeal one day out of time.

  • Whether the documents sought by the subpoena constituted a "report" within the meaning of the Children and Young Persons (Care and Protection) Act 1998 (NSW), particularly ss 3 and 29
  • Whether a document that contains both protected "report" material and other material can be severed, with only the non-report portions produced
  • Whether s 29(1)(e) of the Act, which prohibits production of any "extract" from a report, precluded the redact-and-produce approach adopted by the primary judge

Decision

The Court of Criminal Appeal granted the extension of time, granted leave, and allowed the appeal, setting aside the subpoena. All three judges agreed on the outcome, though Hoeben CJ at CL reserved his position on certain observations made by Hamill J about potential legislative amendment and the fairness consequences for the accused.

The central question was whether the complainant's account of her own alleged sexual abuse, contained within the FACS documents, was separable from the broader "report" protected by the Act. The Court rejected the primary judge's approach of redacting the document to isolate what appeared to be a personal complaint about the complainant's own abuse. White JA and Hamill J agreed that the complainant's account of her own abuse provided the very foundation for her assertion of a current risk of significant harm to a child or young person. The two elements were integrally connected, not severable.

Section 29(1)(e) of the Act expressly prohibits the production of any "extract" from a protected report. White JA reasoned that even if a particular extract would not, standing alone, qualify as a report under the Act, that extract cannot be compelled for production when it forms part of a protected report. The fact that producing the extract might not offend the legislative purpose did not permit a construction inconsistent with the plain terms of the provision.

Hamill J acknowledged the difficult practical consequences of the decision. The accused would be denied potentially relevant evidence, including the date and substance of the first complaint, creating a significant forensic disadvantage in proceedings concerning events from four decades ago. His Honour noted that the primary judge's redaction approach was consistent with the purposes of the legislation, even if it did not accord precisely with its terms, and observed that legislative amendment might be warranted. He also noted that the Director of Public Prosecutions would need to consider whether it remained in the public interest to continue the prosecution in these circumstances.

Orders Made

  • Extension of time to file the application for leave to appeal granted
  • Application for leave to appeal granted
  • Appeal allowed
  • Order dismissing the notice of motion in the District Court quashed
  • Subpoena directed to the Department filed in District Court proceedings H61638320 set aside
  • Confidential Exhibit E returned to the NSW Crown Solicitor's Office to be held securely and produced to this or any other court in the event of further appeals or proceedings

Key Takeaways

  • Under s 29(1)(e) of the Children and Young Persons (Care and Protection) Act 1998 (NSW), a court cannot compel production of any extract from a protected report, even where that extract would not itself constitute a "report" if it stood alone.
  • A complainant's account of her own historical sexual abuse, contained within a FACS report, was held to be integral to that report where it provided the basis for assertions of current risk of significant harm to a child or young person. The two components could not be treated as legally separate.
  • The Court of Criminal Appeal confirmed that the legislative purpose of s 29 is to protect the identity of reporters and encourage reporting of risks of harm to children. However, where the identity of the reporter is already known, that purpose does not in itself permit production of the underlying documents if the material otherwise falls within the Act's protections.
  • Statutory construction must give effect to the plain terms of the legislation, even where those terms produce outcomes that sit uncomfortably with fairness to an accused. The court noted this tension openly but held that any remedy lay with the legislature.
  • Hamill J's observations about the forensic disadvantage to the accused and the potential need for legislative reform were expressly reserved by Hoeben CJ at CL, meaning those observations should be read as Hamill J's alone rather than as the court's settled view.

Legislation and Cases Referenced

Legislation
- Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 3, 8, 23, 24, 25, 27 and 29
- Criminal Appeal Act 1912 (NSW), s 5F(3)(a)
- Interpretation Act 1987 (NSW), s 33

Cases
- Hayward (a pseudonym) v The Queen (2018) 97 NSWLR 852; [2018] NSWCCA 104
- Secretary, Department of Family and Community Services v Hayward (a pseudonym) [2018] NSWCA 209