Citation: Trad v Department of Education (NSW) [2023] NSWDC 168
Court: District Court of NSW
Date: 24 May 2023
Judge(s): McHugh SC DCJ
Background
The appellant was the nominated supervisor of Kidstart Family Day Care, an approved provider of family day care services. On 4 March 2019, a family day care educator engaged by Kidstart placed an infant in a bassinet while the baby was wearing a bib, with a sheet and pillow also present, and left the baby unsupervised for between 35 and 45 minutes. The baby died. Each aspect of that conduct was contrary to safe sleep practices and known by the educator to be so.
The appellant was convicted in the Local Court of two offences under the Children (Education and Care Services) National Law 2010 (NSW) and one offence under a related regulation. On 9 November 2022, McHugh SC DCJ upheld her appeal and quashed the Local Court's convictions, finding among other things that her conduct before the incident was reasonable, that she had no knowledge of the events on the day, and that the educator's conduct amounted to momentary inadvertence.
The Department of Education (NSW) then sought to have the court submit a stated case to the Court of Criminal Appeal on a question of law said to arise from the appeal judgment. The appellant opposed that request. This judgment sets out the court's reasons for accepting it.
Legal Issues
- Whether the question posed by the Department constitutes a question of law (rather than a question of fact or mixed fact and law) within the meaning of s 5B of the Criminal Appeal Act 1912 (NSW)
- Whether any such question of law "arises on" the appeal proceedings, as required by s 5B, given that the issue of absolute liability was not raised in argument before the court
- Whether the time limit under s 5B(2) had expired and, if so, whether there were reasonable prospects of the Court of Criminal Appeal granting an extension
- Whether submitting a stated case would constitute an abuse of process, given the Department had also commenced judicial review proceedings in the Court of Appeal
Decision
Issue 1: Whether the question is one of law
The court found that the underlying question the Department sought to have resolved was whether s 165(2) of the National Law imposes absolute liability. The appellant submitted that the question was at best one of mixed fact and law. The court accepted that, because the question concerned statutory construction of s 165(2), it was properly characterised as a pure question of law (at [47], [52]).
Issue 2: Whether the question arises on the appeal
This was the most contested issue. The appellant argued that absolute liability was never raised in argument on the conviction appeal, so no such question arose on it. The court acknowledged that absolute liability was not addressed in its judgment because it was not raised in argument (at [50]). However, the court reasoned that, because it was relevantly engaged in statutory construction of s 165(2) when determining the scope of the nominated supervisor's obligation, and because a Victorian Court of Appeal decision (ABC Developmental Learning Centres Pty Ltd v Wallace) had arguably treated similar legislation as imposing absolute liability, the Court of Criminal Appeal was best placed to determine whether the question of law arises on the appeal (at [52]). The court was "at least, not dissatisfied" in relation to this aspect (at [53]).
Issue 3: Time limits and extension prospects
The court found that it became functus officio (that is, its power over the appeal was spent) when it gave judgment on 9 November 2022, so the 28-day time limit under s 5B(2) had most likely already expired (at [58]-[59]). Nonetheless, the court identified features that may support the Court of Criminal Appeal granting an extension: the significance of an intermediate appellate court having approached similar provisions one way, the presence of similar offence provisions in other regulatory contexts, and the fact that some delay arose inadvertently when the Department's request was sent to the wrong email address (at [61]).
Issue 4: Abuse of process
The abuse of process argument was not finally determined. The Department undertook through senior counsel to seek to withdraw, or at least not press, the judicial review proceedings in the Court of Appeal. The court noted that there was "much to be said" in support of the appellant's abuse of process submission but put the issue to one side on the strength of that undertaking (at [32]).
Overall conclusion
The court determined that the interests of justice favoured submitting a stated case to the Court of Criminal Appeal and exercised its discretion accordingly (at [63]).
Orders Made
- The court accepted the Department's request and will submit a stated case to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW) (at [62]).
Key Takeaways
- Under s 5B of the Criminal Appeal Act 1912 (NSW), a District Court judge may submit a question of law to the Court of Criminal Appeal only if that question arises on the appeal; the court left it to the Court of Criminal Appeal itself to determine finally whether a question not argued during the conviction appeal could nonetheless be said to "arise on" it (at [52]-[53]).
- A question concerning whether a statutory provision imposes absolute liability is characterised as a pure question of law for the purposes of s 5B, because it turns on statutory construction rather than on findings of fact (at [47], [52]).
- The District Court found that it became functus officio upon delivering its appeal judgment, meaning the statutory time limit for requesting a stated case began to run from that point rather than from any later costs determination (at [58]).
- Where the time limit under s 5B(2) has likely expired, the existence of a conflicting intermediate appellate decision on the same legislative provision, combined with the significance of the question across multiple regulatory contexts, may support reasonable prospects of the Court of Criminal Appeal granting a time extension (at [61]).
- Concurrent judicial review proceedings in the Court of Appeal alongside a stated case application raised a potential abuse of process; the court noted that the submission had real force, though it ultimately proceeded on the basis of the prosecuting authority's undertaking to withdraw those parallel proceedings (at [32]).
Legislation and Cases Referenced
Legislation
- Children (Education and Care Services) National Law 2010 (NSW) s 165
- Criminal Appeal Act 1912 (NSW) s 5B
Cases
- ABC Developmental Learning Centres Pty Ltd v Wallace (2007) VR 409; [2007] VSCA 138
- Forrest v Director of Public Prosecutions (NSW) (2020) 286 A Crim R 191
- Gibson v Director of Public Prosecutions (NSW) (No 2) (2021) 105 NSWLR 434
- Proudman v Dayman (1941) 67 CLR 536
- R v Swansson (2007) 69 NSWLR 406
- R v Trad (District Court (NSW), McHugh SC DCJ, 9 November 2022, unrep)
- Sasterawan v Morris (2007) 69 NSWLR 547
- Sasterawan v Morris [2008] NSWCA 70