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District Court 23 July 2019

Hayward v R

[2019] NSWDC 464

Assault & violence

Citation: Hayward v R [2019] NSWDC 464
Court: District Court of New South Wales
Date: 23 July 2019
Judge(s): Norrish QC DCJ

Background

The accused faced trial on five serious charges arising from alleged mistreatment of a four-year-old child at her home in western Sydney during May 2014. The charges included unlawful detention, assault occasioning actual bodily harm (in company), causing grievous bodily harm whilst reckless, and causing the child to take a noxious substance. A co-accused had already pleaded guilty in 2016 to four of those charges and received an aggregate sentence of 16 years imprisonment with a 12-year non-parole period.

At the centre of the application was a statutory problem created by two earlier appellate decisions concerning this very accused. The Court of Criminal Appeal and then the Court of Appeal had each held that section 29 of the Children and Young Persons (Care and Protection) Act 1998 rendered "harm reports" made to the Family and Community Services department (FACS) inadmissible in criminal proceedings and prohibited identification of their makers. The accused held sealed FACS files containing material she argued was relevant to showing that the child's mother, rather than the accused, was responsible for the child's injuries.

The accused moved for a permanent stay of proceedings, or alternatively a conditional stay, on the basis that she could not receive a fair trial without access to that material. She also served a constitutional notice seeking referral to the High Court of a question whether section 29 violated the Kable principle governing the institutional integrity of State courts.

Legal Issues

  • Whether the court should permanently stay the proceedings on the basis that the operation of section 29 of the Act rendered the trial unfairly oppressive and constituted an abuse of process
  • Whether a conditional or temporary stay should be granted to allow the accused to pursue further proceedings in another jurisdiction
  • Whether section 29 of the Act is constitutionally invalid as incompatible with the institutional integrity of State courts exercising federal jurisdiction (the Kable principle), and whether that question should be referred to the High Court

Decision

Issue 1: Permanent Stay

The District Court confirmed it holds an implicit power to permanently stay criminal proceedings where a trial would be relevantly unfair and constitute an abuse of process, but emphasised that such power is exercisable only in extreme cases (at [18]). Drawing on Jago v District Court of New South Wales [1989] 168 CLR 23, the court noted a stay is only available where no other procedure available to the trial judge can relieve against the unfair consequences (at [18]).

The court rejected the submission that the unavailability of the FACS material rendered the trial unfairly oppressive (at [28]). The key reason was that the Crown case did not depend solely on the evidence of the child's mother. Direct eyewitness evidence was available from the co-accused DD, who had admitted acting in company with the accused, and from witness EE regarding two of the counts (at [29]). Their reliability was not contingent on establishing any tendency of the child's mother. Additionally, the Crown conceded the accused could rely on substantial tendency evidence concerning the mother, including her violence against children, neglect, inappropriate discipline, drug use, and practice of attributing the child's injuries to falls down stairs (at [13]).

The court found that while the trial would not be perfect and the statutory exclusion created an unusual situation where the parties knew more than the court, this did not reach the threshold of being "unfairly and unjustifiably oppressive" or of a kind where nothing a trial judge could do would relieve against its unfair consequences (at [28], at [31]).

Issue 2: Conditional or Temporary Stay

The court declined a conditional stay (at [32]). It observed that any application by the accused to the Court of Criminal Appeal under section 5F of the Criminal Appeal Act 1912 would require leave. The court was not in a position to determine whether leave would be granted, and it noted that superior courts have repeatedly indicated that trials below should not be delayed to accommodate a litigant's desire to pursue further rights unless the appellate court itself so directs (at [32]). The accumulated delay of over five years since the child's injuries was noted as a further consideration militating against adjournment (at [33]).

Issue 3: Constitutional Referral

The court declined to refer the constitutional question to the High Court (at [54]). It accepted the persuasive force of obiter observations by Macfarlan JA in earlier proceedings, and of the Court of Appeal's own observations in FACS v Hayward [2018] NSWCA 209, to the effect that section 29 did not deprive the court of its capacity to exercise judicial power impartially and did not compromise the institutional integrity of the court (at [40], at [41], at [43]).

Section 29 was characterised as an evidentiary and procedural rule, applicable to both parties, that did not deem any fact proved, did not require the prosecution to be relieved of proof beyond reasonable doubt, and did not direct the court as to the outcome of its jurisdiction (at [48], at [49]). The court accepted that Parliament has authority to enact laws balancing competing interests in the conduct of criminal trials, and that section 29 was neither arbitrary nor manifestly disproportionate, reflecting a legislative choice to protect vulnerable children and the reporters of child abuse (at [40], at [42], at [50]). Those findings meant it was not necessary to determine the constitutional question, and the court found no basis to conclude section 29 was repugnant to the judicial process in a fundamental degree (at [43]).

Orders Made

  • All applications by the accused (permanent stay, conditional stay, and constitutional referral) were declined.

Key Takeaways

  • A permanent stay of criminal proceedings remains an exceptional remedy available in the District Court only where a trial would be unfairly and unjustifiably oppressive and where no procedure available to the trial judge can relieve against that unfairness. The threshold is high and was not met here, even where legislation prevented the court itself from inspecting material held by the parties (at [18], at [28]).

  • Where the Crown case rests on direct eyewitness evidence and an admission by a co-accused, the absence of additional tendency evidence arising from a statutory exclusion does not necessarily render the trial relevantly unfair (at [29]).

  • Section 29 of the Children and Young Persons (Care and Protection) Act 1998, as construed by the Court of Criminal Appeal and the Court of Appeal in earlier proceedings concerning this accused, renders harm reports inadmissible in criminal proceedings and prohibits identification of their makers. Both courts found that this did not compromise the institutional integrity of the District Court (at [11], at [41]).

  • Under the Kable principle, a State statute conferring authority on a State court will only be constitutionally invalid where it is repugnant to or incompatible with the court's institutional integrity in a fundamental degree. Evidentiary and procedural rules that balance competing public interests, apply equally to both parties, and leave the court free to find facts and apply the law do not meet that standard (at [35], at [48], at [49]).

  • Refusing a conditional or temporary stay below to allow a party to pursue interlocutory appellate relief is consistent with the principle that trial courts should not delay proceedings to accommodate a litigant's desire to exercise further rights, absent a direction from the appellate court itself (at [32]).

Legislation and Cases Referenced

Legislation
- s.29 Children and Young Persons (Care and Protection) Act 1998

Cases
- Barton v The Queen [1980] 147 CLR 75
- Church of Scientology Inc v Woodward (1982) 154 CLR 25
- Condon v Pompano P/L (2013) 252 CLR 38
- FACS v Hayward [2018] NSWCA 209
- Fardon v Attorney General of Qld (2004) 223 CLR 575
- Graham v Minister of Immigration [2017] 263 CLR 1
- Gypsy Jokers Motorcycle Club
- Gypsy Jokers V Commissioner of Police (2008) 234 CLR 532
- Hayward v R
- International Finance trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319
- Jago v District Court of New South Wales [1989] 168 CLR 23
- John Fairfax Ltd v District Court of New South Wales [2004] 61 NSWLR 344,
- K Generation v Liquor Licensing Court [2009] HCA 4
- Kable v Director of Public Prosecutions [1996] 189 CLR 51
- KS v Veitch (No. 2) (2012) 84 NSWLR 172
- Nicholas v The Queen [1998] HCA 9
- R v Dupas [2010] HCA 20
- R v Hayward [2018] NSWCCA 104
- R v Hayward (a pseudonym) [2017] NSWSC 1170
- R v McCarthy NSWCCA – unreported 12 August 1994
- R v McDonald, Maitland v R [2016] NSWCCA 306
- R v Morgan [1993] 30 NSWLR 543
- R v Nicholas (1998) 193 CLR 170
- R v PJE (NSWCCA, unreported 9 October 1995)
- R v Webb, [2012] NSWCCA 216
- R v WRC [2003] NSWCCA 394
- Re Attorney General’s Reference [2014] NSWCCA 251
- Rogers v The Queen [1994] 181 CLR 251
- Secretary of Department of FACS v Hayward