Supreme Court New South Wales

• Medium Neutral Citation: Director General, Dept of Family and Community Services v FEW [2013] NSWSC 1448
• Hearing dates: 27/09/2013
• Decision date: 03 October 2013
• Before: Fullerton J
• Decision: Order for the production of specified documents.
• Catchwords: PROCEDURE - subpoena - objection to production - statutory privilege under s 29 Children and Young Persons (Care and Protection) Act - definition of "report" - whether documents should be produced
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998; Children and Young Persons (Care and Protection) Amendment Act 2010; Interpretation Act 1987; Police Act 1990; Uniform Civil Procedure Rules 2005
• Cases Cited: Baff v New South Wales Commissioner of Police [2013] NSWSC 1205; Sydney Water Corporation v The Persons Listed in the Schedules trading as PricewaterhouseCoopers [2008] NSWSC 361
• Category: Procedural and other rulings
• Parties: Director General, Dept of Family and Community Services (Applicant); FEW (Respondent)
• Representation: Counsel: AN Williams (Applicant); D Yehia SC (Respondent); Solicitors: Crown Solicitor's Office (Applicant); Blair Criminal Lawyers (Respondent)
• File Number(s): 2011/247992

Judgment

1 FULLERTON J: On 27 September 2013 I gave brief reasons for ordering production of specified documents which had been produced under a subpoena directed to the Director General of the Department of Family and Community Services to the solicitors for the accused. I indicated at that time that I would publish more detailed reasons at a later date but invited the Director General to have the matter relisted on short notice in the event that detailed reasons were required before the accused's trial commences on 8 October 2013.

2 On the afternoon of 30 September 2013 the Director General requested that the matter be listed to request that I publish detailed reasons in advance of the trial. What follows are those reasons.

3 Frederick Ernest Williams is charged with the murder of Child X who was aged 2½ at the time of her death from a head injury on 1 April 2011. Dr Duflou, the pathologist who performed the autopsy, was unable to determine whether the skull fracture (with associated subdural haemorrhage and brain swelling) was the result of the infliction of a single blow or multiple blows. Other non-fatal injuries were also identified to various parts of the child's body, including bruising to the forehead, the back of the head, the left ear and the buttocks, some of which had extended into the subcutaneous tissue.

4 For three weeks prior to her death the child had been in the care of the accused at his home in Coffs Harbour. The accused was the de facto stepfather of the child's mother. X's mother had left the child in the accused's care while she investigated the possibility of moving interstate with her boyfriend.

5 The accused denied inflicting any of the injuries. The various accounts he has given as to what occurred on the morning of 30 March 2011 when he found the child on the floor of his home are to the consistent effect that she must have either fallen from or tripped over her pram whilst he was in the toilet and hit her head.

6 The Crown seeks to lead evidence that all of the injuries identified at autopsy were inflicted on 30 March 2011, and that they are inconsistent with the accused's assertion that the fatal head injury was accidental. The Crown also seeks to rely upon the secondary injuries to support the submission that the accused was the only person who could have inflicted the injuries. In the alternative, the submission will be put by the Crown that if the injuries might reasonably have been sustained over a number of days prior to the child's death, it is unlikely that she died on 30 March 2011 by accident. In either case, the Crown alleges that the fatal injury, whenever it was caused, was the deliberate act of the accused and was accompanied by an intention to inflict grievous bodily harm, thereby amounting to murder.

7 On 21 December 2012 the Department of Family and Community Services ("the Department") produced documents in answer to a subpoena issued by the accused requiring production of the following:

1. All files, reports and risk assessment reports relating to [Child X] (DOB: xx xx 2008).

2. All files, reports and risk assessment reports relating to [the mother of Child X] (DOB: xx xx 2008).

8 The documents that were produced were in a redacted and unredacted form. There was no objection to the accused having access to those documents. The documents indicate that as many as twelve separate notifications (two of which were pre-natal) that the child was at risk of significant harm had been received by the Department prior to her death, each of which relate, or appear to relate, to concerns or allegations that she was being physically abused by her mother (including being at the risk of harm in utero), and general concerns about the child's welfare. The content and detail of the reports of harm or risk of harm are redacted. The material relating to X's mother has been produced and is not the subject of any further call.

9 A further subpoena was issued by the accused on 30 May 2013 seeking production of the documents relating to the deceased child in their unredacted form. The Director General resists production of that material on the basis that he cannot be compelled to produce it (or a copy or extract of it) by reason of the operation of s 29(1)(e) of the Children and Young Persons (Care and Protection) Act 1998 ("the Act"). That section provides:

29(1) If, in relation to a child or young person or a class of children or young persons, a person makes a report in good faith to the Director-General or to a person who has the power or responsibility to protect the child or young person or the class of children or young persons:

...

(e) a person cannot be compelled in any proceedings to produce the report or a copy of or extract from it or to disclose or give evidence of any of its contents, and

10 The documents to which access was sought were identified in the proceedings before me in Exhibit 2. They were cross-referenced to documents the subject of a certificate under s 29(1A) of the Act, tendered in the proceedings as Exhibit 3. Section 29(1A) provides as follows:

A certificate purporting to be signed by the Director-General that a document relating to a child or young person or a class of children or young persons is a report to which this section applies is admissible in any proceedings and, in the absence of evidence to the contrary, is proof that the document is such a report.

11 The effect of the s 29(1A) certificate is to certify that the documents to which access is sought in these proceedings are "reports" for the purposes of s 29 (in this case, in particular, for the purposes of ss 29(1)(d) and 29(1)(e)), in the absence of any evidence to the contrary.

12 A preliminary issue at the hearing concerned whether the documents were "reports" as defined under the Act, it being submitted by Ms Yehia SC, who appeared on the hearing and who is briefed to appear for the accused at trial, that I would be satisfied that the format and content of the documents in their redacted form (a representative class of which were tendered for the purpose of the argument) is evidence from which I could conclude that they are not "reports" as defined in s 29(6), thereby displacing the statutory presumption under s 29(1A). Were I satisfied that the form and content of the documents constituted evidence capable of displacing the statutory presumption, it was submitted that I should then view the documents in their unredacted form to determine for myself whether ss 29(1)(d) and 29(1)(e) of the Act applied, in particular, whether the construction of s 29(1)(e) contended for by the Director General to resist production of the unredacted documents was sustainable.

13 A "report" is defined in various places in the Act. For the purposes of s 29 a "report" is defined in s 29(6) to include a report under ss 24, 25, 27, 120, 121 and 122 of the Act. For present purposes, it was generally agreed that ss 24, 25 and 27 were the material sections since they concern either mandatory reporting that a child (including a child in utero) is at risk of significant harm, where there are reasonable grounds for suspecting that to be the case by a person identified in s 27(1), or the subject of report voluntarily by other persons in an undefined class. Ms Yehia submitted that the protection afforded voluntary or mandatory reporters or notifiers under s 29 is only intended to extend to what she described as "the original risk of harm reports" and not other documents, such as departmental risk assessments of a parent or guardian of a child (in this case X's mother and her boyfriends); communication with other departmental officers about the child the subject of the risk of harm report, or other documents produced in the process of the Department's internal work processes concerning that child.

14 After considering the documents relied upon by Ms Yehia, and accepting that some of them, in particular departmental records apparently produced following investigation and review by the Department, appear to refer to or repeat the terms of the primary report of harm (the detail of which is redacted), I was unable to reach a level of sufficient satisfaction on the basis of that material alone, that they were not otherwise "reports" as defined in the Act, or that they constituted contrary evidence sufficient to displace the statutory presumption that they are "reports" for the purposes of the section.

15 The question that then arises is whether the Director General is entitled to resist production of the documents the subject of the s 29(1A) certificate under s 29(1)(e).

16 Section 29 provides as follows:

(1) If, in relation to a child or young person or a class of children or young persons, a person makes a report in good faith to the Director-General or to a person who has the power or responsibility to protect the child or young person or the class of children or young persons:

(a) the making of the report does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct, and

(b) no liability for defamation is incurred because of the report, and

(c) the making of the report does not constitute a ground for civil proceedings for malicious prosecution or for conspiracy, and

(d) the report, or evidence of its contents, is not admissible in any proceedings other than the following proceedings (and appeals arising from the following proceedings):

(i) care proceedings in the Children's Court,

(ii) proceedings in relation to a child or young person under the Family Law Act 1975 of the Commonwealth,

(iii) proceedings in relation to a child or young person before the Supreme Court or the Administrative Decisions Tribunal,

(iv) proceedings before the Victims Compensation Tribunal or the Guardianship Tribunal,

(v) proceedings under the Coroners Act 2009, and

(e) a person cannot be compelled in any proceedings to produce the report or a copy of or extract from it or to disclose or give evidence of any of its contents, and

(f) the identity of the person who made the report, or information from which the identity of that person could be deduced, must not be disclosed by any person or body, except with:

(i) the consent of the person who made the report, or

(ii) the leave of a court or other body before which proceedings relating to the report are conducted,

and, unless that consent or leave is granted, a party or witness in any such proceedings must not be asked, and, if asked, cannot be required to answer, any question that cannot be answered without disclosing the identity or leading to the identification of that person.

(1A) [Already cited]

(2) A court or other body cannot grant leave under subsection (1)(f)(ii) unless the court or other body is satisfied that the evidence is of critical importance in the proceedings and that failure to admit it would prejudice the proper administration of justice.

(3) A court or other body that grants leave under subsection (1)(f)(ii):

(a) must state the reasons why leave is granted, and

(b) must ensure that the holder of the report is informed that evidence as to the identity of the person who made the report, or from which the identity of that person could be deduced, has been disclosed.

(3A) The protections given by this section to a person who makes a report apply to:

(a) any person who provided information on the basis of which the report was made, in good faith, to the person, and

(b) any person who otherwise was in good faith concerned in making such a report or causing such a report to be made,

in the same way as they apply in respect of the person who actually made the report.

(4) Subsection (1)(f) does not prevent the disclosure of information from which the identity of a person may be deduced if the prohibition on the disclosure of that information would prevent the proper investigation of the report.

(4A) Subsection (1)(f) also does not prevent the disclosure to a law enforcement agency of the identity of the person who made the report (the reporter), or information from which the identity of the reporter could be deduced, if:

(a) the identity of the reporter, or the information, is disclosed in connection with the investigation of a serious offence or reportable conduct alleged to have been committed or done against a child or young person, and

(b) the disclosure is necessary for the purposes of safeguarding or promoting the safety, welfare and well-being of any child or young person (whether or not the victim of the alleged offence).

(4B) However, subsection (4A) does not apply unless:

(a) a senior officer of the law enforcement agency to which the disclosure is made has, before the disclosure is made, certified in writing that obtaining the reporter's consent would prejudice the investigation of the serious offence or reportable conduct concerned, or

(b) the person or body that makes the disclosure has, before making the disclosure, certified in writing that it is impractical to obtain the consent of the reporter.

(4C) The person or body that discloses to a law enforcement agency the identity of the reporter, or the information from which the identity of the reporter could be deduced, is required to notify the reporter of the disclosure unless:

(a) it is not reasonably practicable in the circumstances to do so, or

(b) the law enforcement agency to which the disclosure is made has advised the person or body that notifying the reporter would prejudice the investigation of the serious offence or reportable conduct concerned.

17 Section 29 of the Act (which was the subject of significant amendment by the Children and Young Persons (Care and Protection) Amendment Act 2010) is concerned with the protection of persons who make reports or provide information about children or young people who are believed on reasonable grounds to be at risk of significant harm to the Director General (or to people who have the power or responsibility to protect children and young people). That this is the intended operation of the section is apparent from the breadth and scope of the various protections the section affords the primary or actual notifiers of children or young people at risk, and those concerned in the making of a report or causing such a report to be made, as provided for in s 29(3A). That this is the intended statutory purpose is also apparent from the relatively confined circumstances in which the identity of such a person might be disclosed, or admitted into evidence, as provided for in s 29(1)(f) and ss 29(2), 29(3) and 29(4).

18 I also take into account as an aid to the construction of the section in that way the subheading to the section which reads, "Protection of persons who make reports or provide certain information". In my view, this confirms that the ordinary meaning conveyed by the text of the provision, considered in its entirety, is to afford protection to those persons consistent with the statutory purposes underlying the provision and the statutory objects in s 8 of the Act (see s 34(1)(a) of the Interpretation Act 1987).

19 While acknowledging the very considerable reach of s 29 in protecting the identity of persons who make reports of the risk of significant harm to children or young people, Mr Williams of counsel submitted that the effect of s 29(1)(e) also entitles the Director General to resist production of the report, or a copy or extract from it, in its entirety irrespective of whether the report identifies the reporter, or any person concerned in making such a report or causing a report to be made, and despite the fact that if the report discloses, or tends to disclose the identity of that person or people, it might be possible to redact that part of the report allowing the fact and detail of the report of harm to be disclosed.

20 Mr Williams submitted that unlike the operation of s 29(1)(f), and related subsections, which provide for a court, in nominated circumstances, to grant leave for the identity of the person to be disclosed in circumstances where evidence of that fact is of critical importance in the proceedings and where the failure to do so would prejudice the proper administration of justice, there is no relief from the effect of s 29(1)(e) on these or any similar grounds. Construed in this way, it follows that even where a court is satisfied that the contents of the report are properly comprehended by the terms of the subpoena or notice to produce, and in addition, even where the court is satisfied that the party seeking access to the report has demonstrated a legitimate forensic purpose, the Director General has an unqualified right to refuse to produce the report and cannot be compelled to do so. In this case there is no suggestion (and neither there could be) that the accused has failed to demonstrate a legitimate forensic purpose in seeking to access the reports about the deceased child, given their obvious materiality to his right to meet the Crown case and ultimately to raise a doubt as to whether he inflicted all (or any) of the injuries revealed on autopsy. The question is whether s 29(1)(e) operates to deny him access to those documents, at the election of the Director General, with the accused's only redress to what must inevitably be a breach of his fundamental right to a fair trial, an application for a permanent stay of his trial.

21 In my view, the construction of s 29(1)(e) urged by the Director General is in conflict with a primary and established principle of legality which obliges the Parliament to make clear its intention when removing, curtailing or wholly abrogating a fundamental right, freedom or immunity. In Baff v New South Wales Commissioner of Police [2013] NSWSC 1205, a case which concerned whether the privilege against self-incrimination had been abrogated by necessary implication in s 201 of the Police Act 1990, Adamson J said:

[67] In Electrolux Home Products Pty Limited v Australian Workers' Union [2004] HCA 40; 221 CLR 309 Gleeson CJ said at [20]-[21]:

[20] In Coco v The Queen, Mason CJ, Brennan, Gaudron and McHugh JJ said:

"The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights." (footnote omitted)

[21] The joint judgment in Coco went on to identify as the rationale for the presumption against modification or abrogation of fundamental rights an assumption that it is highly improbable that Parliament would "overthrow fundamental principles, infringe rights, or depart from the general system of law" without expressing its intention with "irresistible clearness". In R v Home Secretary; Ex parte Pierson, Lord Steyn described the presumption as an aspect of the principle of legality which governs the relations between Parliament, the executive and the courts. The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law. [Footnotes omitted.]

[68] The reason for the requirement that Parliament make its intention clear when removing a fundamental right appears from the following statement in R v Secretary of State for the Home Department; Ex parte Simm [2000] 2 AC 115 at 131 per Lord Hoffman:

"Parliament can, if it chooses, legislate contrary to fundamental principles of human rights ... The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual." [Footnotes omitted.]

22 In my view, given that I consider the intended operation of the provision to afford protection to the notifiers or reporters of the risk of harm to children or young people, the general words of s 29(1)(e), must be construed subject to the overriding principle of the right of an accused person to a fair trial, with all of the substantive and procedural protections that are inherent in achieving that objective in the public interest. Those procedural protections include, so far as this case is concerned, the right of the accused to require production of material in the possession of the Executive that he claims to be material to his defence (and not otherwise disclosed to him by the prosecution), subject to the necessity to demonstrate a legitimate forensic purpose before access to that material is permitted in accordance with the Uniform Civil Procedure Rules 2005 (see r 33.9) and settled legal principle. It is for that reason that I read down s 29(1)(e) in the way I expressed in my brief reasons last week in the following way:

...

I am also satisfied that s 29(1)(e) of that Act should be read as protecting or preventing from production under the subpoena the contents of the reports identified in Exhibits 2 and 3 but only insofar as those reports, or the contents thereof, disclose or tend to disclose the identity of the person who made the report or information from which the identity of that person could be deduced.

I otherwise order that the documents identified in Exhibits 2 and 3 be produced under the subpoena.

...

In construing s 29(1)(e) in the way that I have, I am satisfied that the accused's fundamental common law right to a fair trial would be jeopardised were I to have construed that subsection in the way contended for by the Director General.

I am satisfied that in the absence of a clear and unambiguous Parliamentary intention to restrict the accused's access to documents foundational or material to his defence that Parliament did not intend that the accused's right to advance a defence at trial should be effectively denied in that way.

I have come to that concluded view having regard to the terms in which s 29 of the Act is described in the subheading to that section and having regard to what I do find to be the purpose and import of the section and its subsections; namely, important protections afforded persons who make a report that a child may be at risk of significant harm, that being a protection which the Parliament has intended should be afforded such people in the public interest.

23 The parties did not address submissions to the operation of the principle that statutory prohibitions against disclosure of information obtained in the course of government business will not generally be sufficient to prevent order for production and inspection in the absence of a clear and unambiguous contrary indication in the legislation (see, for example, Sydney Water Corporation v The Persons Listed in the Schedules trading as PricewaterhouseCoopers [2008] NSWSC 361). The operation of that principle also has an obvious application in this case.

24 In addition, reading down s 29(1)(e) also allows for s 29(1)(d) to have what I consider to be its intended statutory operation. The amendments to s 29(1)(d), which commenced on 1 January 2011, extended the list of proceedings in which a report, or evidence of its contents, might be admitted. Prior to the passage of the amending Act, the only proceedings in which a report (or evidence of its contents) was admissible were care proceedings in the Children's Court, or any appeal arising from those care proceedings. As I see it, the construction contended for by the Director General would frustrate, or would tend to frustrate the intention of the Parliament to extend the class of proceedings in which a report might be admitted, since it could not be gainsaid, having regard to the diverse types of proceedings in ss 29(1)(d)(i)-(iv), that a report would necessarily be available to the parties in at least some of those proceedings (whether under a duty of disclosure or as a served document) without any need for the report to be produced compulsorily under subpoena or under a notice to produce.

25 In my published remarks last week I said that it was neither appropriate nor necessary to make any pre-trial ruling on the admissibility of any of the documents that I have ordered be produced under the subpoena. However, in order to deal with the alternate submission advanced by the Director General at the hearing that the documents are privileged under Rules 1.9(1)(a) and 1.9(3) of the Uniform Civil Procedure Rules 2005 because they are not admissible under any of the subsections of s 29(1)(d) of the Act, I have come to the conclusion that the phrase "in relation to" in s 29(1)(d)(iii), generally regarded as words of particularly wide import, should be treated in this case as including proceedings in this Court where the child is the named victim in a murder trial, there being nothing in the incorporation of that phrase in s 29 of the Act, or from the context in which they appear, which would warrant a more confined meaning. I am satisfied that there is a sufficient connection or association between the child (the subject of the material sought on subpoena) and the pending criminal trial for the documents to be, at least prima facie, admissible, the trial of the accused being a proceeding "in relation to a child or young person before the Supreme Court". On that basis, I reject the alternate submission advanced by the Director General that the documents are subject to a statutory privilege entitling him to resist production under the subpoena.

**********

Decision last updated: 01 November 2013