Children's Law News Volumes


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

"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]