RP v The Queen  HCA 53
Criminal law – Criminal liability and capacity – Doli incapax – Where appellant convicted of two counts of sexual intercourse with child under 10 years – Where appellant approximately 11 years and six months at time of offending – Where appellant found to be of very low intelligence – Whether presumption of doli incapax rebutted.
Words and phrases – "doli incapax", "knowledge of the moral wrongness of the act", "merely naughty or mischievous", "morally wrong", "seriously wrong".
Bondelmonte v Bondelmonte  HCA 8
FAMILY LAW – Family Law Act 1975 (Cth) – Parenting orders – Where children taken overseas by father – Where children stayed with father overseas in breach of parenting orders – Where mother applied for order for return of children – Where children expressed preference to stay with father overseas – Where primary judge made interim orders for return of children to Australia and for living arrangements upon return – Whether erroneous to discount weight given to views expressed by children – Whether father's breach of parenting orders relevant to children's best interests – Whether necessary to ascertain children's views as to living arrangements – Whether parenting orders could be made in favour of strangers to proceedings.
WORDS AND PHRASES – "best interests of the child", "judicial discretion", "parenting orders", "views expressed by the child".
Family Law Act 1975 (Cth), ss 60CA, 60CC, 60CD, 60CE, 64C, 65C, 65D, 68L, 68LA.
SL v Secretary, Department of Family and Community Services  NSWCA 124
JUDICIAL REVIEW – review of decision of District Court on appeal from Children's Court – whether error of law on the face of the record or jurisdictional error established – whether District Court applied correct provisions of the Children and Young Persons (Care and Protection) Act 1998 (NSW)
CHILD WELFARE – care and protection of children – child protection orders – where mechanism of injuries unexplained – no realistic possibility of restoration – challenge to Children's Court order conferring parental responsibility on maternal grandparents until aged 18
STATUTORY INTERPRETATION – application of amended legislation – whether rights and liabilities accrued under pre-amendment legislation for purposes of s 30, Interpretation Act 1987 (NSW) – relevant rights and liabilities arising from court orders under review
CIVIL PROCEDURE – independent legal representative, s 98A Children and Young Persons (Care and Protection) Act 1998 (NSW) – whether a child the subject of care proceedings who is incapable of giving instructions should be a party to proceedings
WORDS AND PHRASES – "new hearing" – s 91, Children and Young Persons (Care and Protection) Act 1998 (NSW)
AA v Secretary, Department of Family and Community Services  NSWCA 323
APPEAL – judgment in supervisory jurisdiction – challenge to refusal of relief – limits of supervisory jurisdiction – merit review properly eschewed – discretionary refusal of relief where alternative remedies available – claims for injunctions to prevent future conduct
CHILD WELFARE – judicial review of decisions of Secretary – judicial review of orders of Children's Court – whether children of applicants at risk – challenge to formation of opinions – whether process legally flawed
JB v R (No 2)  NSWCCA 67
CRIMINAL LAW – murder which occurred on 21 April 2008 – referral to Court of Criminal Appeal under s 79 Crimes (Appeal and Review) Act 2001 – concession by Crown that appeal must succeed and conviction be quashed – whether verdict of acquittal or retrial should be ordered – undertaking by Crown not to call a compromised witness on retrial – evidence of that witness very important in original trial – whether remaining evidence capable of proving applicant guilty of murder – detailed analysis of evidence likely to be called at retrial – evidence unlikely to establish guilt of applicant – verdict of acquittal entered.
AB v R (Cth)  NSWCCA 191
BAIL APPLICATION – 17 year old – charged with intentionally doing an act in preparation for or planning a terrorist act – threatening posts on Facebook – psychiatric issues – history of threats and self-harm – significant improvement while in custody – whether exceptional circumstances established – whether applicant would pose an unacceptable risk if released – bail refused.
LD v R  NSWCCA 217
CRIMINAL LAW – appeal against sentence – aggravated break, enter and commit serious indictable offence – where applicant was a child at the time of the offence – conceded failure of sentencing judge to apply provisions of the Children (Criminal Proceedings) Act 1987 – matter remitted
BH v R  NSWCCA 290
CRIMINAL LAW – sentence appeal – manslaughter – guilty plea – juvenile offender – whether sentencing judge sentenced applicant on basis of factual findings not open – question of motivation for offence – whether sentence was manifestly excessive – appeal dismissed
OK v R  NSWCCA 318
Sentence – juvenile offender – multiple offences – armed robbery in company – approach to sentencing youthful offenders – cognitive impairment – emotional immaturity – prospects of rehabilitation – whether sentence manifestly excessive.
Re Madison (No 2)  NSWSC 27
FAMILY LAW AND CHILD WELFARE – application to vary orders for parental responsibility made under Court's parens patriae jurisdiction – whether the Department has failed to comply with previous orders
FAMILY LAW AND CHILD WELFARE – orders sought for specific financial assistance – financial responsibility to provide for the child's needs – whether Court can intervene in exercise of administrative discretion regarding financial assistance
FAMILY LAW AND CHILD WELFARE – orders sought to transfer proceedings from Children's Court to New South Wales Supreme Court – no exceptional circumstances to justify transfer
Re Tilly v Minister for Family and Community Services  NSWSC 1208
FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – application to prevent removal of child from plaintiff's care – where allegations of mistreatment – where statutory obligation on department to remove child – whether Court can make orders inconsistent with statute – parens patriae jurisdiction – parens patriae power not capable of dispensing with statutory obligations – residual parens patriae power to remove child from Minister's care in aid of statutory care responsibilities – held, Court has power to make child ward of Court – whether Court should exercise parens patriae jurisdiction – best interests of child – where removal would undermine child's bonds with plaintiff – where need to protect child from risk of harm – where exercising jurisdiction would circumvent statutory child protection regime – held, Court should not exercise parens patriae jurisdiction.
ADMINISTRATIVE LAW – judicial review – grounds of review – procedural fairness – whether rules of procedural fairness apply to decision of Children's Guardian to impose interim bar on plaintiff's performance of child-related work under (NSW) Child Protection (Working with Children) Act 2012 – where review mechanism specifically prescribed under Act through New South Wales Civil and Administrative Tribunal – held, decision not subject to rules of procedural fairness.
Re M (No 6)  NSWSC 170
CIVIL PROCEDURE – appeal from the Children's Court regarding care orders made – appeal application dealt with by District Court judge – application for extension of time to commence appeal under s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("Care Act") – Rule 50.3(1)(c) of the Uniform Civil Procedure Rules 2005 (NSW) considered – whether granting an appeal out of time would cause unfairness – held leave limited to delay – held discretion to grant leave be exercised in this instance
CHILDREN – judgments and orders – application for leave for the rescission or variation of care orders under s 90 of the Care Act – children taken into care – Children's Court orders granted parental responsibility to children's fathers – mother sought leave to appeal for children to be restored in her care – whether or not there is a realistic possibility of restoration of a child or young person to the custody of the mother – whether there was significant change in relevant circumstances in considering leave – consideration of matters identified by mother – held mother has not demonstrated that she has full insight into her situation – held insufficient time to demonstrate consistent good parenting at the time of hearing – held none of the matters that the mother identified as being a significant change in relevant circumstances – held change in access to child as a further consideration – held further consideration needed for mother's access to the children and contact between siblings
CIVIL PROCEDURE – application for leave for the rescission or variation of care orders – conditions of grant of leave considered – whether leave to appeal may be given only to certain aspects of a care order –
whether leave should be subject to conditions – whether court has power to defer on a final ruling – invitation to counsel to provide further submission – discretion to grant leave not exercised in this instance
Re M (No 8)  NSWSC 641
CIVIL PROCEDURE -- HELD extension of time for plaintiff to file her summons for leave to appeal under s 91 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act) granted
CHILDREN – judgments and orders – application for leave to apply for the rescission or variation of care orders under s 90 of the Care Act – completion of proceedings the subject of the judgment in Re M (6):  NSWSC 170 – HELD plaintiff has not demonstrated that her conduct is likely to change in a way that would justify the court in exploring the answers to the questions set out at  of the principal judgment – questions not considered – plaintiff's application dismissed
Re Tanya  NSWSC 794
CHILDREN - Care and Protection – whether there is a realistic possibility of restoration to mother- whether there is a realistic possibility of restoration to the father- contact- allocation of parental responsibility- intention of department to place the child with the father-previous orders opposed by mother- PROCEDURE- Appeal from the decision of the President of the Children's Court
JP v Director of Public Prosecutions (NSW)  NSWSC 1669
CRIMINAL LAW – appeal under Part 5 of the Crimes (Appeal and Review) Act 2001 – plaintiff convicted in Children's Court of aggravated breaking and entering – prosecution case dependent on finding that plaintiff's fingerprint found at scene of break and enter – challenge to admissibility of fingerprint expert's conclusion that plaintiff's fingerprint found at scene – necessity for expert to set out the reasons for their conclusion – level of detail required – whether ground contending that expert certificate should not have been admitted involved a question of law alone – whether ground involved mixed question of fact and law – whether leave should be granted – expert certificate should have but did not reveal outcome of inspection of the fingerprints but no question of law alone arose – leave granted to raise ground involving mixed question of fact and law – ground failed – deficiencies in certificate rectified by expert's oral evidence – whether Magistrate's reasons for admitting certificate inadequate – whether Magistrate's reasons for convicting plaintiff inadequate – complaint not made out – whether Magistrate wrongly purported to apply different standard to admission of expert evidence in Children's Court compared to other courts – Magistrate did not apply that approach – whether Magistrate devolved decision making task to expert – complaint not made out – whether leave should be granted to challenge conviction – leave refused.
R v NK  NSWSC 498
CRIMINAL LAW – application for bail – rebuttable presumption against bail being granted to a person charged with a terrorism offence – exceptional circumstances to justify the granting of bail – youth of the applicant – vulnerability of youth to adult persuasion or influence – bail conditions appropriately addressing bail concerns
RC v Director of Public Prosecutions  NSWSC 665
CRIMINAL LAW – sentence – appeal from Children's Court constituted by the President – multiple property offences – break enter and steal, break and enter with intent, aggravated break enter and steal – some offences committed whilst on parole and other conditional liberty – young person with intellectual and emotional deficits – Attention Deficit Hyperactivity Disorder – need for supervision – length of non-parole period
C v The Secretary, Family and Community Services  NSWDC 103
CHILD CARE APPEAL – Aboriginal child in out of home care – parents unsuitable placement – whether parental responsibility should be allocated to the maternal grandmother despite a refusal by the Office of the Children's Guardian to issue her with a clearance to work with children
The Secretary, Department of Family and Community Services and the Marks Children  NSWChC 2
CHILDREN - Care and Protection - term "parent" - exclusion of father from proceedings (s 104A Care Act) - father and legal representative not to be served with materials (s 64(7)(a)(ii), - father prohibited from having contact with the children (s 90A)
DFaCS re Eggleton  NSWChC 4
CHILDREN – Care and protection – realistic possibility of restoration – permanency planning
The Secretary, Department of Family and Community Services and the Harper Children  NSWChC 3
CHILDREN - Care and Protection - realistic possibility of restoration - permanency planning - placement - allocation of parental responsibility
Police v JC  NSWChC 1
Forensic procedure – suspect – suspicion on reasonable grounds
DPP v Martin (a pseudonym)  VSCA 219
CRIMINAL LAW – Interlocutory appeal by Crown – Applicant facing two charges of incest involving biological sister – Prosecution seeks to lead other acts of misconduct as a child as 'context evidence' –
HML v The Queen
 HCA 16;
(2008) 235 CLR 334;
IMM v The Queen
 HCA 14;
(2016) 330 ALR 382 considered – Whether exclusion of 'context evidence' substantially weakens prosecution case – Trial judge rules against admissibility – Whether error in treating presumption of
doli incapax as relevant when assessing admissibility of proposed uncharged acts – Presumption not relevant in way in which invoked –
Criminal Procedure Act s 295(3)(a) – Appeal allowed – Matter remitted to trial judge for reconsideration in accordance with reasons of Court of Appeal.
The Queen v M H K  VSC 742
CRIMINAL LAW - Sentence –
Commonwealth Criminal Code s 101.6(1) - Act in preparation for a terrorist act – Plea of guilty – Maximum penalty life imprisonment - Youth - Accused constructing improvised explosive device – Islamic State propaganda – Islamic State recruiter providing information – Intention to carry out terrorist attack – "De-radicalisation" – Whether effective - Remorse incomplete – Contrition – Youth Justice order – Whether within sentencing range – Recommendation pursuant to s 471
Children, Youth & Families Act 2005.
LCM v The State of Western Australia  164
Catchwords Criminal law and sentencing - Young offender - Manslaughter of infant child of offender - Sentence of 10 years' detention - Mental impairment - Foetal alcohol spectrum disorder - Relevance of FASD to sentencing - Whether new evidence of FASD suffered by offender meant a different sentence should have been imposed
"Care Appeals from the Children's Court" - Paper delivered to District Court Conference on 29.3.16, His Honour Judge Peter Johnstone, President of the Children's Court of New South Wales [722kB]
"Cross-over Kids – The Drift of Children from the Child Protection System into the Criminal Justice System" - Paper delivered to Aboriginal Legal Service Conference on 5.8.16, His Honour Judge Peter Johnstone, President of the Children's Court of New South Wales [440kB]
"The Children's Court – Driving a Paradigm Shift" - Paper delivered to the Legal Aid Conference on 12.8.16, His Honour Judge Peter Johnstone, President of the Children's Court of New South Wales [447kB]
Tilley v Children's Guardian  NSWCA 174
CHILD WELFARE – applicant appealed from NCAT decision affirming refusal of Children's Guardian to grant working with children check clearance – applicant previously charged with disqualifying offences in circumstances where proceedings discontinued – whether applicant subject to assessment requirement within meaning of Child Protection (Working with Children) Act 2012 (NSW) s 14 – whether NCAT applied incorrect legal test and reversed onus of proof in determining whether satisfied that applicant posed risk to safety of children under s 18(2)
JW v District Court of NSW  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)
IS v Regina  NSWCCA 116
CRIMINAL LAW – sentencing – aggravated robbery– intentionally destroy property– where robbery committed in company and under the influence of "ice" – where offender a juvenile – where offender's upbringing engages the principle in Bugmy v The Queen – where primary judge emphasised general deterrence and community protection – where primary judge accepted the offender's remorse and expressed confidence in his prospects of rehabilitation – balance between the principle in Bugmy v The Queen, remorse, rehabilitation and general deterrence – held that the primary judge erred in applying the principles applicable to the offender's deprived background – held that the primary judge erred in applying the principles applicable to the sentencing of juveniles
DS v R  NSWCCA 37
CRIMINAL LAW – appeal – leave to appeal out of time granted – leave to appeal against sentence granted – whether there was a failure to pay proper regard to the fact that offences other than Count 1 could have been dealt with in the Children's Court – no miscarriage or serious injustice demonstrated, ground refused – whether there was a failure to take into account the applicant's immaturity other than in relation to the issue of rehabilitation – no failure demonstrated, ground refused – whether aggregate sentence imposed is manifestly excessive – appeal dismissed
AL v R  NSWCCA 34
CRIMINAL LAW – conviction appeal – three counts of sexual intercourse with a child under the age of 10 – complainant aged 4 to 5 – delay in bringing prosecution – whether trial judge failed to appropriately warn jury as to unreliability of complainant's evidence – s 165 Evidence Act direction – Murray direction - capacity of jury to assess evidence given in denial of charges – whether trial judge failed to adequately direct jury as to the burden and standard of proof – whether trial judge failed adequately to direct jury as to the accused's evidence – child accused – whether trial judge failed to adequately direct jury on question of doli incapax – RP v The Queen  HCA 53 considered – whether verdict unreasonable or cannot be supported by the evidence – open to jury to find guilt beyond reasonable doubt – appeal dismissed
R v AA  NSWCCA 84
CRIMINAL APPEAL – Crown appeal – sexual assaults upon children – five offences – offender under 18 when some offences committed – offences discovered and prosecuted when offender an adult – whether sentencing judge erred in affording Ellis discount – necessity to comply with s 23(2) of Crimes (Sentencing Procedure) Act – error made out – whether sentencing judge erred in assessing objective seriousness of offences – error established in relation to one offence – whether sentencing judge erred in referring to sentencing regime apposite to juveniles if offences discovered earlier – no error in doing so but sentencing judge misstated effect of sentencing provisions for children – whether sentencing judge double counted for offender's youth – no error established – whether sentencing judge erred in approach to accumulation – no error established – whether individual sentences manifestly inadequate – not established – appeal dismissed
Department of Family and Community Services and Liam  NSWChC 2Child in need of care and protection: establishment hearing – onus of proof on the Secretary – fractures in non-ambulant child – whether more probably caused by inflicted injury or bone fagility
DPP v MHK (a pseudonym)  VSCA 157
CRIMINAL LAW – Sentence – Crown appeal – Offence of doing acts in preparation for, or planning, terrorist act contrary to s 101.6 of Criminal Code (Cth) – Respondent sentenced to 7 years' imprisonment with non-parole period of 5 years and 3 months – Whether sentence manifestly inadequate – Respondent 17 years old at time of offence – Guilty plea – Culpability measured by nature and extent of planned terrorist act – Serious example of offending – High moral culpability – General deterrence, denunciation and protection of community paramount sentencing considerations – Personal mitigatory factors of limited weight – Sentence manifestly inadequate – Appeal allowed – Respondent resentenced to 11 years' imprisonment with non-parole period of 8 years and 3 months – R v Lodhi  NSWSC 691; (2006) 199 FLR 364 – Lodhi v The Queen (2007) 179 A Crim R 470 – Fattall v The Queen  VSCA 226 – Elomar v The Queen  NSWCCA 303; (2014) 316 ALR 206.
Jasmin v R  WASCA 122
Criminal law - Jurisdiction - Whether the appellant was aged under 18 years at the time of allegedly committing an offence - Whether the District Court or the Children's Court had jurisdiction to hear and determine the charge of the offence
Criminal law - Jurisdiction - Appellant pleaded pursuant to s 126(1)(a) of the Criminal Procedure Act 2004 (WA) that the District Court did not have jurisdiction to deal with him - Onus of proof - Primary judge determined after a trial of issues that at the material time the appellant was of the age of 18 years - Primary judge rejected the appellant's plea under s 126(1)(a) and required the appellant pursuant to s 127(4) of the Criminal Procedure Act to enter a different plea to the charge - Whether the primary judge's conclusion that the appellant was of the age of 18 years was unsafe or not reasonably open Criminal law - Federal offence - Appellant convicted in the District Court on his plea of guilty of an offence against s 232A of the Migration Act 1958 (Cth) - Appellant sentenced to the mandatory minimum penalty, for an adult, of 5 years' imprisonment with a minimum non parole period of 3 years - The circumstances in which a conviction entered after a plea of guilty may be set aside on appeal
Justice Legislation Amendment Bill 2017
This Bill was passed by Parliament on 8 August 2017 and commenced as of the date of assent, on Monday 14 August.