Children's Law News Volumes

CLN 2 - November 2018

High Court 

Johnson v The Queen [2018] HCA 48

CRIMINAL LAW − appeal against convictions − appellant convicted of five counts of sexual offending against his sister − counts joined − s 34P of Evidence Act 1929 (SA) provided for admission of discreditable conduct evidence for permissible use − propensity evidence − admissibility − Crown relied on uncharged acts as relationship or context evidence − Crown relied upon evidence of appellant's other alleged sexual misconduct to rebut presumption of doli incapax – where evidence of one uncharged act improperly admitted − whether miscarriage of justice - appeal dismissed. 

Family Court of Australia - Full Court 

Field v Kingston [2018] FamCAFC 145 

FAMILY LAW – APPEAL – EVIDENCE – Privilege – Where the wife sought a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) ("the Evidence Act") in relation to the wife's proposed evidence in chief – Where the primary judge dismissed the application on the basis that there was insufficient evidence to determine whether the wife had reasonable grounds for objecting to giving the evidence.

FAMILY LAW – APPEAL – EVIDENCE – Compellability – Where a witness must be "required" or compelled to give the evidence to which the objection is made – No distinction between oral and affidavit evidence – Whether the duty to give full and frank disclosure under the Family Law Rules 2004 (Cth) ("the Rules") compels a party to give evidence which may abrogate from the privilege against self-incrimination – The Rules as per the "principle of legality" evince no intention to impinge on a party's privilege against self-incrimination – Preliminary view that if a party is directed to file an affidavit on a specific subject matter, such circumstances may contain the requisite degree of compulsion to permit the issuing of a certificate – Where there is no basis on which the certificate could have been granted to the wife in this case as the element of compulsion was lacking.

FAMILY LAW – APPEAL – EVIDENCE – Reasonable grounds for making an objection – Where the "objection" under s 128(2) of the Evidence Act refers to giving evidence that "may tend" to prove that the witness has committed an offence or is liable to a civil penalty – Where the primary judge took the view that in order for a s 128 certificate to be granted  the wife had to provide to the court the evidence that was objected to – Where the primary judge erred by focussing on identifying the evidence as opposed to considering whether there were reasonable grounds for the wife's objection – Where the primary judge was nevertheless correct in refusing to grant a s 128 certificate as it was not available for the wife's proposed evidence in chief – Appeal dismissed.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the order dismissing the wife's application did not finally determine her rights in relation to a s 128 certificate – Where leave to appeal is therefore necessary.

NSW Court of Appeal 

Secretary, Department of Family and Community Services v Hayward (a pseudonym) [2018] NSWCA 209 (25 September 2018) 

CHILD WELFARE – care and protection – risk of significant harm reports – whether reports admissible in criminal proceedings – whether person can be compelled to produce or give evidence regarding contents of report in criminal proceedings – whether court in criminal case can compel disclosure of identities of makers of report – Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 24, 29, 29(1)(f)(ii).

CRIMINAL PROCEDURE – where accused in criminal trial sought disclosure of identities of persons who made risk of significant harm reports – whether District Court in criminal trial has power to order disclosure of identities – Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 24, 29(1)(f)(ii) – Court cannot order Secretary to disclose the identity of a person who made who made a risk of harm report. 

DPP v Dylan Hutchinson (a pseudonym) 2018 VSCA 153 

CRIMINAL LAW – sentencing – crown appeals – committing indecent act with child under 16 (3 charges), producing child pornography for use through a carriage service and knowingly possessing child pornography – non-custodial disposition – sentenced to community correction orders for 3 and a half years, with conditions, and 3 year good behaviour bond – whether sentences manifestly inadequate – whether custodial sentence required – serious offending – offences of indecent act with child and producing child pornography committed as a child – powerful mitigating factors – difficult sentencing decision – sentences not wholly outside permissible range – appeals dismissed.

Damian Honeysett v The Queen [2018] VSCA 214 

CRIMINAL LAW –  sentence – appellant pleaded guilty to one charge of armed robbery and one charge of theft – appellant and co-offender robbed liquor store armed with knives – appellant sentenced to five years' imprisonment with a non-parole period of three years – whether sentence manifestly excessive – whether appellant's youth, deprived background and Aboriginality appropriately taken into account in mitigation – whether appellant's participation in Koori Court process given sufficient weight – R v Morgan (2010) 24 VR 230 considered – appeal dismissed.

CRIMINAL LAW – Koori Court – principles to be applied when determining weight to be given to participation in sentencing conversation – whether judge should seek feedback from Elders after sentencing conversation – role of 'Gladue' reports – Gladue v The Queen [1999] 1 SCR 688 referred to.

NSW Court of Criminal Appeal 


CRIMINAL LAW – conviction appeal – sexual intercourse without consent – homosexual intercourse with male under 10 years – admissibility of tendency evidence – tendency incidents the subject of acquittals – acquittals based upon failure of Crown to rebut common law presumption of doli incapax – whether tendency evidence left to jury on a basis that controverted acquittals. 
  
EVIDENCE – tendency evidence – probative value –prior conduct the subject of acquittals – acquittals based on failure to prove offender capable of criminal intent – whether tendency evidence relevant only to actus reus of further offending – basis on which tendency evidence could be left to jury – tendency to "sexually assault" children – admissibility of recorded admissions to tendency incidents – appeal against conviction upheld – conviction and sentence quashed – matter remitted to the District Court. 

Hayward v R (2018) NSWCCA 104 

STATUTORY INTERPRETATION – Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29(1)(d)(iii) – whether reports made to Department of Family and Community Services admissible in criminal proceedings in Supreme Court – principle of legality – accused's right to a fair trial – whether Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29(1)(d) was intended to abrogate the accused's right to a fair trial. 
  
APPEALS – precedent – circumstances in which Court of Criminal Appeal will depart from previous decisions – whether The Application of the Attorney-General dated 4 April 2014 [2014] NSWCCA 251 ought to be followed – applicant granted leave to appeal – appeal dismissed. 

Paul Campbell (a pseudonym) v R [2018] NSWCCA 87 

CRIMINAL LAW – appeal against sentence – sentencing of children – relevant principles of sentencing – where 13 year old commits serious sexual offences on younger relatives – offences impulsive and opportunistic – appreciation of wrongfulness of acts and consequences – whether Judge erred in assessing objective criminality – strong evidence of rehabilitation – interference with education of offender – whether Judge erred in deciding there were no alternatives to a full time custodial sentence only appropriate sentence – whether Judge erred in deciding offences involved breach of trust – emphasis on rehabilitation – various errors established. 
  
CRIMINAL LAW – sentence – sexual offence carrying life imprisonment included on Form 1– contrary to the statute – concession that proceedings miscarried – appropriate orders – remission or re-sentence?

R v AB [2018] NSWCCA 113 

CRIME – suppression and non-publication orders – respondent pleaded guilty to historical sex offences – some of the offences were committed during a period when the respondent was a child - Children (Criminal Proceedings) Act 1987 (NSW) s 15A prohibits identification of respondent in connection with criminal proceedings involving certain offences – complainants' consented to the publication of their names for the purposes of that Act – whether order under Court Suppression and Non-publication Orders Act 2010 (NSW) s 8 necessary because s 15A prohibition apparently not complied with – whether order necessary to protect the safety of respondent or his family – order not necessary.

NSW Supreme Court

Re Benji and Perry [2018] NSWSC 1750 

CHILDREN – parens patriae jurisdiction – application to prevent implementation of orders made by the Children's Court – Children's Court ordered that children the subject of the application be returned to their carers – the Department contends that this would pose an unacceptable risk of harm – whether there is an unacceptable risk of harm – necessary to balance possibility of harm if children are returned with probability of harm if they are not – application dismissed.

R v Alou (No. 4) [2018] NSWSC 221 

CRIMINAL LAW - sentence - guilty plea - aiding and abetting commission of terrorist act - fatal shooting of Curtis Cheng outside New South Wales Police Headquarters - 18-year old Offender supplied firearm to 15-year old killer - other acts of assistance by offender - offender a supporter of Islamic State - offender deeply radicalised at time of offence - offender remains radicalised - very high objective gravity of offence - absence of contrition and remorse - grim prospects of rehabilitation - factors relevant to sentence - importance of denunciation, general deterrence and specific deterrence - relevance of youth - very substantial determinate sentence imposed.


SENTENCING — terrorism offences — doing an act in preparation for a terrorist act — intervention programs — juvenile offender — subjective circumstances of offender give way to community protection — specific and general deterrence.

District Court 

Re: A Foster Carer v Department of Family & Community Services [No 2] [2018] NSWDC 71

CHILD CARE APPEAL – due to exceptional circumstances the appellant's costs of the appeal assessed pursuant to s 88 of the Children and Young Persons (Care and Protection) Act 1998 are to be paid by the Department of Family and Community Services. 


CRIME - section 66C(4) Crimes Act 1900 - aggravated sexual intercourse child between 14 - 16 - offenders in company - young offenders - co-offenders - single victim - pleas of guilty.

R v ST [2018] NSWDC 22 

CRIME – plea of guilty – be carried in stolen conveyance – steal motor vehicle – aggravated break and enter.

SENTENCE – Form 1 matters – appropriate forum of sentencing – appropriate penalty – background of offender – mitigating circumstances. 

PROCEDURAL – remittance of matter to Children's Court – appropriate course.

Children's Court 


COSTS – finding that there was a realistic possibility of restoration to the father of the children – father seeking a costs order – exceptional circumstances – Secretary relied on allegations as an integral part of risk assessment without making reasonable enquiries in determining the truth – whether costs should be apportioned between the Secretary and the children's mother - Secretary ordered to pay the costs of the children's father as agreed or assessed.  

Papers and other materials


CLN 1- March 2018

NSW Court of Appeal

Director of Public Prosecutions v Saunders [2017] NSWCA 760 

APPEAL - appeal from Local Court – where magistrate dismissed charges pursuant to s 32(3)(b) Mental Health (Forensic Provisions) Act – where order in terms that the person attend a psychiatrist/psychologist – "specified" in s 32(3)(b) requires that a magistrate name a particular place or a particular person – consideration of giving effect to the enforcement provisions and the object and purpose of Part 3 of the Act – appeal allowed

Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206

FAMILY LAW AND CHILD WELFARE – parens patriae jurisdiction – where child under the parental responsibility of the Minister – child placed in foster care – application for leave to appeal against refusal to grant permanent injunction restraining disclosure that child was in care – where applicant conceded at trial that the court was engaged in a "balancing exercise" between the child's interests and other competing interests – whether applicant can raise new arguments on appeal contrary to concession below –construction of strict liability offence for publication of child's name contrary to Children and Young Persons (Care and Protection) Act 1998, s 105 – whether primary judge's construction was arguably wrong – whether judge's exercise of discretion in refusing to grant injunction arguably miscarried.

NU v NSW Secretary of Family and Community Services [2017] NSWCA 221  

FAMILY LAW AND CHILD WELFARE – child welfare under State legislation – proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) – where allegation that father had sexually abused daughter – appropriate test to be applied in cases involving custody or access to a child – whether inability of court to make positive finding of abuse determinative of the ultimate question of whether unacceptable risk of harm to child – M v M (1988) 166 CLR 69; [1988] HCA 68 
  
EVIDENCE – standard of proof – proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) – where allegation that father had sexually abused daughter – application of Evidence Act 1995 (NSW), s 140 – application of Briginshaw standard 
  
ADMINISTRATIVE LAW – judicial review – denial of procedural fairness – rule in Browne v Dunn (1894) 6 R 67 – significance of witness being on notice of allegation – whether absence of cross-examination on particulars of allegation precluded finding of unacceptable risk of harm to the child 

Re Jeremy (a pseudonym); DM v Secretary, Department of Family and Community Services [2017] NSWCA 220 

SUPERVISORY JURISDICTION – review sought of judgment of District Court on appeal from Children's Court – application for leave to apply to vary care orders – whether District Court erred in law in failing to apply provisions of the Children and Young Persons (Care and Protection) Act 1998, s 90 – whether relief futile or unnecessary 
CHILD WELFARE – care and protection of children –application for leave to vary care orders – whether "significant change in any relevant circumstances" – whether applicants had arguable case

NSW Court of Criminal Appeal

Tikomaimaleya v R [2017] NSWCCA 214 

Evidence Act 1995, ss 13, 61, 165(2) — child witness — competency — no error in judge's conclusion that 6-year-old witness competent to give sworn evidence — judge applied correct test under s 13 — even if complainant not competent to give sworn evidence, trial judge not obliged to direct jury that there is distinction between sworn and unsworn evidence — no requirement under s 165(2) of Evidence Act 1995 or common law to warn jury that evidence may be unreliable because it is unsworn — Criminal Procedure Act 1986, s 306V — admissibility of recorded interview as evidence of vulnerable person determined by s 306V not Evidence Act 1995, s 61 — judge did not err by admitting complainant's pre-recorded interview — question of competence at time of interview not part of defence case at trial 

R v SG [2017] NSWCCA 202 

Criminal Appeal Act 1912, s 5F(3A) — erroneous exclusion of child witness corroborating evidence — jurisdiction of CCA enlivened to hear appeal given exclusion of evidence substantially weakened prosecution case, thus satisfying s 5F(3A) — Evidence Act 1995, ss 55, 137 — relevance under s 55 should be given wide interpretation — judge considered reliability of evidence for purpose of assessing relevance — approach contrary to IMM v The Queen (2016) 257 CLR 300 — evidence plainly capable of rationally affecting assessment of probability facts in issue and relevant under s 55 — judge did not assess probative value of evidence as required by s 137 — The Queen v Dickman [2017] HCA 24 applied — allegations of child could be tested in court to remove risk of unfair prejudice — s 137 not engaged — judge erred in excluding evidence 

Ohanian v R [2017] NSWCCA 268

CRIMINAL LAW — Sentencing — Dysfunctional childhood — Early exposure to illegal drug use — Whether impact "diminishes" — Sentencing judge found ample opportunity to reform — Approach contrary to High Court authority — Whether different sentence warranted — Applicant re-sentenced.

DJ v R [2017] NSWCCA 319

CRIMINAL LAW - appeal against sentence - 16-year old applicant pleads guilty to discharging a (shortened) firearm with intent to cause grievous bodily harm - committed for sentence to District Court - applicant and Crown request District Court to pass sentence for related offences on certificate under s.166 Criminal Procedure Act 1986 - offences of possession of an unregistered firearm and failing to keep a prohibited firearm safely - sentences of imprisonment imposed for offences - argued on appeal that s.166 certificate procedure not available for related offences - held s.166 certificate procedure was available - whether sentences manifestly excessive - held sentences not manifestly excessive - appeal dismissed

NSW Supreme Court

Director of Public Prosecutions (NSW) v GW [2018] NSWSC 50

APPEAL – "question of law above" – magistrate's decision not to disclose reasoning adequately nor conclusions of facts – magistrate failed to conduct balancing exercise under s 138 of Evidence Act – decision quashed. 
ARREST – arrest for breach of bail without consideration of alternatives is not necessarily improper and the evidence obtained not necessarily in consequence of impropriety.

R v Hayward [2017] NSWSC 1170 

STATUTORY INTERPRETATION – Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29(1)(d)(iii) – whether reports made to Department of Family and Community Services admissible in criminal proceedings in Supreme Court – principle of legality – whether clear and unmistakable language used to abrogate right to a fair trial – clear language in earlier form of s 29(1)(d) – right to a fair trial according to law – reference had to Second Reading Speech – proceedings in s 29(1)(d) are "child welfare proceedings" – s 29(1)(d)(iii) not a reference to all proceedings in this Court involving children – reports inadmissible in criminal proceedings in this Court

 R v FE [2013] NSWSC 1692 

Law Enforcement (Powers and Responsibilities) Regulation 2005, regs 21, 24, 25, 29, 30 (now regs 25, 28, 29, 33, 34 of Law Enforcement (Powers and Responsibilities) Regulation 2016) — a child is a "vulnerable person" under reg 24 — support person under reg 30 is not merely observer but provides assistance — a person with limited proficiency in English is incapable of fulfilling this role — reg 25 imposes obligation on custody manager to assist vulnerable person in exercising their legal rights — Evidence Act 1995, ss 90, 138, 139 — statements in interview improperly obtained under s 139(1) given failure to caution accused — had accused been aware of her legal rights unlikely she would have participated in interview — undesirability of admitting such evidence outweighs desirability of admission — record of interview excluded under s 138 

District Court

GO v The Secretary Department of Family and Community Services (2017) NSWDC 198 

Joinder of person with genuine concern for the welfare of a child to care proceedings

Re: A Foster Carer v Department of Family and Community Services [2017] NSWDC 360

CHILD CARE APPEAL – upholding of appeal by summons filed pursuant to s 90 of the Children and Young Persons (Care and Protection) Act 1998 seeking rescission, or alternatively, variations, of orders made by the Children's Court – previous orders rescinded – appellant foster carer allocated parental responsibility for the child

Children's Court

Department of Family & Community Services & the Slade Children [2017] NSWChC 4

Care and protection – jurisdiction – transfer of proceedings    

Department of Family and Community Services and the Eastway Children [2017] NSWChC 3

Care and Protection

Papers and other materials 

"Early intervention, diversion and rehabilitation from the perspective of the Children's Court of NSW" - Paper delivered at the Juvenile Justice Summit on 5 May 2017, His Honour Judge Johnstone, President of the Children's Court of NSW [406kB]

"Keynote Address" delivered at the Australian and New Zealand Association of Psychiatry, Psychology and Law (ANZAPPL) Annual General Meeting on 1 March 2017, His Honour Judge Johnstone, President of the Children's Court of NSW [505 kB]