CLN 1 - April 2016
The Queen v GW  HCA 6
Criminal law – Evidence – Unsworn evidence – Where respondent convicted following trial in Supreme Court of the Australian Capital Territory of commission of act of indecency in presence of daughter, R – Where R six years old when giving evidence – Where R's evidence received unsworn under s 13(3) of Uniform Evidence legislation – Where ex tempore reasons of pre-trial judge suggested reversal of presumption of competence to give sworn evidence – Where respondent agreed to be bound by pre-trial judge's ruling under s 13(3) – Whether pre-trial judge failed to apply s 13 – Whether open to pre-trial judge to be satisfied s 13(3) test met – Whether R's unsworn evidence wrongly admitted.
Criminal law – Evidence – Jury directions – Where audio-visual recording of child witness' unsworn evidence tendered at trial – Where respondent requested trial judge direct jury that evidence unsworn – Whether Uniform Evidence legislation required direction – Whether common law required direction to avoid perceptible risk of miscarriage of justice – Whether adequate directions given.
Words and phrases – "competence", "evidence of a kind that may be unreliable", "evidence of children", "obligation to give truthful evidence", "perceptible risk of a miscarriage of justice", "presumption of competence", "reliability", "sworn evidence", "unsworn evidence".
Secretary, Department of Family and Community Services; Re "Lee"  NSWSC 417
FAMILY LAW AND CHILD WELFARE - the (Cth) Family Law Act 1975 and related legislation - children - recovery order - in aid of secure accommodation order - jurisdiction
Secretary, Department of Family and Community Services; Re "Lee"  NSWSC 1276
FAMILY LAW AND CHILD WELFARE - exercise of parens patriae jurisdiction – where orders in place for parental responsibility and secure accommodation - continued availability of jurisdiction where child soon to attain 18 years of age but is not capable of managing her affairs - importance of ability to detain and restrain child to ensure proper care - where guardianship order does not include powers to detain and restrain - where guardianship order does not provide adequate safety net as alternative to parental responsibility and secured accommodation orders - unwillingness to discharge Court orders upon child's attaining 18 years of age until satisfied appropriate replacement orders in place.
Secretary, Department of Family and Community Services; Re "Lee"  NSWSC 2054
FAMILY LAW AND CHILD WELFARE – secure accommodation order – Secretary given advice that justified in circumstances in not routinely restraining/detaining child.
Secretary, Department of Family and Community Services; Re "Lee"  NSWSC 138
FAMILY LAW AND CHILD WELFARE – parens patriae jurisdiction – where responsibility of young person transferred from Minister to Public Guardian on attainment of 18 years of age – where appropriate arrangements in place for future care.
JW v District Court of New South Wales  NSWCA 22
JURISDICTION – Court of Appeal – Supreme Court Act 1970 (NSW), s 69 – order sought to set aside order of magistrate in the Children’s Court committing applicant for trial – order sought to set aside judgment or order of the District Court refusing stay of proceedings – whether Court of Appeal has jurisdiction to grant the orders – effect of Supreme Court Act s 17(1) and Third Schedule – whether proceedings fell into category of exclusion provided by cll (a1) and (a2) of Third Schedule – order concerning the District Court proceedings not excluded JURISDICTION – Court of Appeal – Supreme Court Act 1970 (NSW), s 48 – proceedings under s 69 concerning orders of a specified tribunal – District Court a specified tribunal under s 48(1) – Children’s Court not a specified tribunal under s 48(1) JURISDICTION – Court of Appeal – single judge sitting alone – jurisdiction of single judge of Court of Appeal to set aside judgment or order of District Court refusing stay of proceedings – Supreme Court Act 1970 (NSW), s 46(2)(b) PRACTICE AND PROCEDURE – application for stay of District Court proceedings – deficiencies in committal of applicant to trial in District Court – stay granted
Kiernan v R  NSWCCA 12
CRIMINAL LAW – sentence appeal – wounding with intent to cause grievous bodily harm – whether offence was properly found to be within the midrange of objective seriousness – whether applicant’s abusive upbringing properly taken into account – whether sentence manifestly excessive – leave to appeal granted but appeal dismissed.
RP v R  NSWCCA 215
CRIMINAL LAW – sexual intercourse with a child under 10 years – aggravated indecent assault – accused was older half-brother of victim - accused aged between 11 and 13 years – doli incapax – whether presumption rebutted – what acts may be considered – whether surrounding circumstances of first offence could be used in assessing if presumption rebutted for later offences – judge alone trial – ground of appeal asserting unreasonable verdict – how Court of Criminal Appeal considers unreasonable verdict ground in a judge alone trial – sentence – whether accused occupied a position of trust - whether manifestly excessive - totality
TC v R  NSWCCA 3
CRIMINAL LAW – appeals – sentencing – historical indecent assault by young person on 9 year old boy contrary to s 81 of the Crimes Act 1900 (NSW) – further historical indecent assault on 12 year old girl contrary to s 76 of the Crimes Act on a Form 1 – sentencing judge convicted applicant and imposed 2 year good behaviour bond – whether sentencing judge failed to into account the sentencing options under the Child Welfare Act 1939 (NSW) – whether the sentencing judge failed to sentence in accordance with standards at time of the offence – whether sentence unreasonable or plainly unjust – whether the sentencing judge erred by recording conviction – whether no lesser sentence warranted in law
"A" v The Secretary, Family & Community Services  NSWDC 307
CHILD CARE APPEAL – rejection of proposed permanency care plan providing for the permanent placement of two children into foster care – evaluation of flawed expert evidence that resulted in maternal grandmother being excluded from consideration for the placement of her two granddaughters into her care – orders for new permanency plan to be prepared to include transition provisions for transfer of placement and care
R v GW  NSWDC 52
CRIMINAL LAW – doli incapax – rebuttable presumption – previous findings of guilt – recommendations as to legislative change
Police v DMO  NSWChC 4
The proceedings in relation to the young person DM [H57623664] are to be relisted before the Children’s Court on a date to be fixed before 8 March 2016
Re Arie, Nadine & Adele  NSWChC 5
General powers to exclude people from proceedings – provision of copies of documents to non-parties
"Admissions by Children", Paper delivered to Children's Court Magistrate's s 16 Conference 2016, Her Honour Judge Dina Yehia, District Court of NSW
"Children's Court Update", Paper to Local Court Magistrates, at the Northern and Southern Regional Conferences 2016, His Honour Judge Peter Johnstone, President of the Children's Court of NSW
"Children's Participation - A Look Towards the Future", Paper to the Child Representation Conference 2016, His Honour Judge Peter Johnstone, President of the Children's Court of NSW