Citation: Department of Education v Trad [2023] NSWCCA 329
Court: NSW Court of Criminal Appeal
Date: 15 December 2023
Judges: Ward P (lead judgment); Dhanji J and Sweeney J (agreeing)
Background
A registered family day care educator, working through an approved family day care service, was responsible for the care of a baby on 4 March 2019. The baby died after the educator failed to follow safe sleep practices. The educator was supervising the child in her own home at the time.
The nominated supervisor of the service (the respondent) was not physically present. She was nonetheless charged with three offences under the Children (Education and Care Services) National Law 2010 (NSW) (the National Law), including an offence under s 165(2), which requires that a nominated supervisor "must ensure" children are adequately supervised at all times. The respondent was convicted in the Local Court, but the District Court quashed those convictions on appeal.
Following the acquittals, the Secretary of the Department of Education (as the relevant regulatory authority) requested that the District Court state a question of law for determination by the Court of Criminal Appeal. Notably, the prosecution had argued in the District Court that the offence was one of strict liability (allowing a defence of honest and reasonable mistake of fact) but shifted position before the Court of Criminal Appeal, contending instead that the offence was one of absolute liability (where no mental element or fault-based defence is available).
Legal Issues
- Whether s 5B of the Criminal Appeal Act 1912 (NSW) was engaged, given that the question of law now raised differed from the position argued on the original District Court appeal.
- Whether the Court should exercise its discretion to answer the stated question, having regard to the public interest in the question and the delay in raising the absolute liability argument.
- Whether s 165(2) of the National Law imposes absolute liability on a nominated supervisor of an approved family day care service when the supervisor is not physically present and a child is found not to have been adequately supervised.
- Whether, if the question were answered affirmatively, the acquittals should be disturbed and the matter remitted to the District Court.
Decision
On jurisdiction: The Court held that s 5B(1) of the Criminal Appeal Act was engaged. A question of law "arising" on an appeal does not require that it was actually recognised and argued in those terms during the appeal. The fact that the Secretary was now advancing a different characterisation of the offence (absolute rather than strict liability) was relevant only to the discretionary questions, not to whether the statutory threshold for stating a case was met.
On discretion to answer: The Court acknowledged a residual discretion whether to answer a stated question even where the procedure is properly invoked. The question was one of genuine public interest, given its potential application across the early childhood education sector. However, the Court treated the delay in raising the absolute liability argument as a significant factor against granting the full relief sought. The Court resolved to answer the question, but determined it would not disturb the acquittals or remit the matter.
On the nature of the offence: Applying the framework from He Kaw Teh v The Queen (1985) 157 CLR 523, Ward P acknowledged that the task of characterising an offence as one of absolute liability is not straightforward. The text of s 165(2), when compared with other provisions in the National Law that expressly incorporate fault elements or defences, pointed clearly to absolute liability. The unfairness of imposing criminal liability on a supervisor who had taken all reasonable precautions gave the Court pause, but ultimately the statutory language was found to be sufficiently clear: the legislature intended the nominated supervisor to bear liability for any departure from adequate supervision, regardless of fault or mental state.
On relief: Notwithstanding the affirmative answer to the stated question, the Court declined to quash the acquittals or remit the matter. The proceedings had not been conducted in the District Court on an absolute liability basis, the respondent had been subject to criminal prosecution for a considerable period, and the District Court had found she had taken all reasonable precautions. Ward P also ordered the Secretary to bear the respondent's costs, noting that the proceedings were brought as a matter of public interest and the non-remittal made such an order appropriate.
Orders Made
- The stated question of law answered: Yes (s 165(2) of the National Law imposes absolute liability on a nominated supervisor in the circumstances described).
- No further orders made (the acquittals were not disturbed and the matter was not remitted).
Key Takeaways
- Section 165(2) of the Children (Education and Care Services) National Law 2010 (NSW) imposes absolute liability on a nominated supervisor of an approved family day care service for failures in adequate supervision of children in the service's care, even when the supervisor is not physically present.
- Under the He Kaw Teh framework, the absence of any fault element or express defence in s 165(2), read against the structure of surrounding provisions in the National Law, was the decisive textual indicator of absolute liability.
- A question of law "arising" on a District Court appeal for the purposes of s 5B of the Criminal Appeal Act 1912 (NSW) need not have been identified or argued in those specific terms during the appeal itself; that consideration goes only to the court's discretion.
- Answering a stated case question in favour of the party seeking it does not automatically produce the consequential relief sought. The Court of Criminal Appeal retained a discretion to decline to disturb acquittals, particularly where the prosecution had been conducted on a different legal basis and significant delay had occurred.
- Where a stated case is pursued primarily as a matter of public interest and the acquittals are ultimately left undisturbed, a costs order against the regulatory authority bringing the stated case may follow.
Legislation and Cases Referenced
Legislation:
- Children (Education and Care Services) National Law 2010 (NSW), ss 3, 5, 104, 162, 165, 269
- Children (Education and Care Services National Law Application) Act 2010 (NSW), s 9
- Criminal Appeal Act 1912 (NSW), s 5B
- Crimes (Appeal and Review) Act 2001 (NSW), s 11
- Criminal Procedure Act 1986 (NSW), s 215
- Education and Care Services National Regulations 2011 (NSW), s 117C
- Fines Act 1996 (NSW), s 122
- Work Health and Safety Act 2011 (NSW)
Key Cases:
- He Kaw Teh v The Queen (1985) 157 CLR 523; [1985] HCA 43 (framework for absolute and strict liability)
- ABC Developmental Learning Centres Pty Ltd v Wallace (2007) 16 VR 409; [2007] VSCA 138
- CTM v The Queen (2008) 236 CLR 440; [2008] HCA 25
- Jesse v Roads and Maritime Services NSW [2019] NSWCCA 176
- Clyne v Wrigley [1980] 1 NSWLR 499
- Day v Sanders; Day v Harness Racing New South Wales (2015) 90 NSWLR 764; [2015] NSWCA 324
- Duarte v Director of Public Prosecutions (NSW) [2020] NSWCCA 351
- Gibson v Director of Public Prosecutions (NSW) (No 2) (2021) 105 NSWLR 434; [2021] NSWCA 218