Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: The Application of the Attorney General for New South Wales dated 4 April 2014 [2014] NSWCCA 251
• Hearing dates: 13 August 2014
• Decision date: 06 November 2014
• Before: Beazley P at [1]; Macfarlan JA at [2]; Bellew J at [51]

Decision

The Court answers each of the three questions submitted by the Attorney General for determination in the negative.

• Catchwords: CRIMINAL LAW - procedure - submission by Attorney General to Court of Criminal Appeal of questions of law after accused acquitted of murder of child - trial judge made order for production by Department of Family and Community Services of reports concerning deceased child - whether Court precluded from making order by s 29 of Children and Young Persons (Care and Protection) Act 1998 (NSW) - principle of legality requires that s 29 be read down so as not to interfere with accused's right to fair trial; STATUTORY INTERPRETATION - principle of legality - whether legislature intended to abrogate accused's right to fair trial by preventing the Court from making orders for production of reports by third parties - whether Department of Family and Community Services a "person" - Children and Young Persons (Care and Protection) Act 1998 (NSW), s 29; CONSTITUTIONAL LAW - limits on legislative power of States - power of Parliament to regulate criminal trials by enacting laws relating to evidence and procedure - whether statutory prohibition on Court compelling production of reports concerning children would be repugnant to or incompatible with institutional integrity of Supreme Court - legislation not invalid under principles in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
• Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 8, 24, 25, 27, 29, 120, 121, 122; Crimes (Appeal and Review) Act 2001 (NSW), s 108; Interpretation Act 1987 (NSW), ss 21, 34, 35
• Cases Cited: Alister v The Queen [1984] HCA 85; 154 CLR 404; Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 87 ALJR 458; Coco v The Queen [1994] HCA 15; 179 CLR 427; Fardon v Attorney-General for the State of Queensland [2004] HCA 46; 223 CLR 575; Haines v Tempesta (1995) 37 NSWLR 24; Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) [2011] NSWCA 363; International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319; Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51; KS v Veitch (No 2) [2012] NSWCCA 266; 84 NSWLR 172; Lee v New South Wales Crime Commission [2013] HCA 39; 87 ALJR 1082; Lipohar v The Queen [1999] HCA 65; 200 CLR 485; Nicholas v The Queen [1998] HCA 9; 193 CLR 173; Pollentine v Bleijie [2014] HCA 30; Potter v Minahan [1908] HCA 63; 7 CLR 277; R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115; Re Nolan; Ex parte Young [1991] HCA 29; 172 CLR 460; Sneddon v State of New South Wales [2012] NSWCA 351; Williamson v Ah On [1926] HCA 46; 39 CLR 95; X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92
• Category: Principal judgment
• Parties: Attorney General (NSW)
• Representation: Counsel: I Temby QC/A N Williams (Attorney General); H Dhanji SC/K Edwards (Contradictor); Solicitors: Crown Solicitor's Office (Attorney General); Blair Criminal Lawyers (Contradictor)
• File Number(s): 2011/247992

Decision under appeal

• Jurisdiction: 9111
• Before: Identity of decision suppressed

HEADNOTE

[This headnote is not to be read as part of the judgment]

The Attorney General for New South Wales submitted for determination by the Court of Criminal Appeal three questions of law pursuant to s 108 of the Crimes (Appeal and Review) Act 2001 (NSW). Those questions arose out of orders for the production of documents made by a judge of the Common Law Division of the Supreme Court in criminal proceedings in which the accused was indicted for the murder of a child.

Prior to his trial, the accused caused subpoenas to be issued to the Department of Family and Community Services ("the Department") for the production of reports made pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("the Act") concerning the deceased child. The trial judge ruled that s 29 of the Act did not preclude the Court from making the order for production. Following production of the reports, the trial proceeded as a judge alone trial and the accused was acquitted.

The questions submitted by the Attorney General to this Court were in the following terms:

(1) Did [the trial judge] err in construing s 29 of the Children and Young Persons (Care and Protection) Act 1998 (the Act) as enabling a Court to order production to the Court in response to a subpoena and over objection of reports under Part 2 of the Act except insofar as they disclosed or tended to disclose the identity of the person or persons who made the reports?

(2) Did [the trial judge] err in construing s 29(1)(e) of the Act?

(3) Did [the trial judge] err in making the order for [production]?

Subsequently, notice was given of a constitutional matter arising in relation to s 29(1)(e) of the Act.

Held, providing negative answers to the three questions (Macfarlan JA; Beazley P and Bellew J agreeing):

(1) The right of every accused person to a fair trial according to law extends to the whole course of the criminal process and includes an accused's right to require third parties to produce relevant documents on subpoena duces tecum ([22], [23], [29]).

(2) The purpose of s 29 of the Act is to provide protections to persons who make reports in good faith to the Director-General of the Department concerning children or young persons ([24]). The section is concerned with protecting the identity of reporters rather than precluding disclosure of the contents of reports as such ([31]-[32]).

(3) The protections afforded to reporters by s 29 are by no means absolute. The section does not exhibit an intention to preclude persons such as the accused from ever coming into possession of reports made by other persons. Rather, the intention is limited to precluding production from being compelled ([28]).

(4) The trial judge did not err in construing s 29 and making an order for production of s 29 reports. The principle of legality requires that the general words of s 29(1)(e) be read down so as not to interfere with the accused's right to a fair trial by precluding him or her from compelling, by subpoena, production of s 29 reports that are relevant to the issues at trial ([29]). The legislature has not expressed its intention to abrogate this right "with irresistible clearness" or "by unmistakable and unambiguous language" ([30]-[31]).

(5) The subpoenas in question were directed to a "person" within the meaning of s 29(1)(e) of the Act. The word "person" includes a body politic. New South Wales state government departments are aspects or manifestations of the Crown in right of the State and the State is, in turn, a body politic ([36]-[37]).

(6) In the alternative, in the event that s 29(1)(e) is to be construed as precluding an order for production of relevant reports, it is nevertheless not constitutionally invalid. The State Parliament has authority to enact laws regulating the conduct of criminal trials within the State. The legislation in question could not be regarded as quite outside the bounds of a reasonable attempt to reconcile the competing objectives of encouraging reporting of issues concerning children and young persons, and ensuring that accused persons receive fair trials ([46]-[48]). As such, it does not interfere with the institutional integrity of the Supreme Court ([48]).

Judgment

1 BEAZLEY P: I have had the advantage of reading in draft the reasons of Macfarlan JA. I agree with his Honour's reasons and the answers to the questions submitted by the Attorney General.

2 MACFARLAN JA: By Notice dated 4 April 2014 the Attorney General for New South Wales submitted for determination by this Court questions of law that arose out of orders for production of documents made by a judge of the Common Law Division of the Supreme Court in criminal proceedings in which the accused was indicted for the murder of a child. The submission was made pursuant to s 108 of the Crimes (Appeal and Review) Act 2001 (NSW). Following production pursuant to the orders, the trial proceeded as a judge alone trial and the accused was acquitted.

3 The questions submitted by the Attorney General to this Court were in the following terms:

(1) Did [the trial judge] err in construing s 29 of the Children and Young Persons (Care and Protection) Act 1998 (the Act) as enabling a Court to order production to the Court in response to a subpoena and over objection of reports under Part 2 of the Act except insofar as they disclosed or tended to disclose the identity of the person or persons who made the reports?

(2) Did [the trial judge] err in construing s 29(1)(e) of the Act?

(3) Did [the trial judge] err in making the order for [production]?

4 The issues before this Court were in essence, first, whether s 29 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) ("the Act") purports on its true construction to preclude the Supreme Court from making an order compelling the production of reports of the type referred to in s 29 and, secondly, whether, if it does, it is constitutionally invalid by reason of the principles stated in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51. The argument in relation to the first question focused on the application to s 29 of the principle of legality, which is to the effect that legislation should not be construed as abrogating fundamental rights in the absence of clear words or necessary implication that the legislature intended that result. The fundamental right in question was said to be the right of an accused to a fair trial which, it was argued, necessarily involved a right to secure the production of relevant documents from third parties.

SECTION 108 OF THE CRIMES (APPEAL AND REVIEW) ACT 2001

5 By reason of s 108(3) of this Act, the Court's determination of the questions submitted to it by the Attorney General will not "in any way affect or invalidate the verdict of acquittal or any other decision given at the trial" of the accused. Furthermore, s 108(5) provides that the "hearing and determination of any question under [the] section is to be held in camera". It is not clear how the "determination", as distinct from the hearing, may be "held in camera". However, it is tolerably clear from this subsection and from subsection (6) that the legislative intent is that the Court's judgment should not permit identification of the person charged but subsequently acquitted. Subsection (6) is in the following terms:

"(6) The following is not to be published:

(a) any report of a submission made under subsection (2),

(b) any report of proceedings under this section that discloses the identity of the person charged at the trial or affected by the decision given at the trial.

Any such publication is punishable as a contempt of the Supreme Court."

6 As a result, the trial judge's decision is not identified in this judgment which adopts the description "The application of the Attorney General for New South Wales dated 4 April 2014" as its title.

7 As the judgment is incapable of affecting the rights of the formerly accused (and now acquitted) person ("the accused"), it is understandable that he did not wish to instruct counsel or solicitors to represent him at the hearing in this Court. To provide a contradictor, the Attorney General, at his expense, instructed counsel to argue the submitted questions on behalf of the accused. This was a course contemplated by s 108(4). Mr Dhanji SC appeared with Ms K Edwards of counsel in this capacity. The hearing proceeded in camera as required by s 108(5).

CHILDREN AND YOUNG PERSONS (CARE AND PROTECTION) ACT 1998 (NSW)

8 Section 8 of the Act states the Act's objects as follows:

"8 What are the objects of this Act?

The objects of this Act are to provide:

(a) that children and young persons receive such care and protection as is necessary for their safety, welfare and well-being, having regard to the capacity of their parents or other persons responsible for them, and

(b) that all institutions, services and facilities responsible for the care and protection of children and young persons provide an environment for them that is free of violence and exploitation and provide services that foster their health, developmental needs, spirituality, self-respect and dignity, and

(c) that appropriate assistance is rendered to parents and other persons responsible for children and young persons in the performance of their child-rearing responsibilities in order to promote a safe and nurturing environment."

9 Section 24 of the Act provides that a "person who has reasonable grounds to suspect that a child or young person is, or that a class of children or young persons are, at risk of significant harm may make a report to the Director-General" of the Department of Family and Community Services. Section 25 provides for pre-natal reports in respect of children who may be at risk of significant harm after their birth and s 27 provides for mandatory reporting by certain health care professionals and others who suspect that a child is at risk of significant harm. Sections 120, 121 and 122 provide for the making of reports concerning the homelessness of children and young persons.

10 Section 29 of the Act is in the following terms:

"29 Protection of persons who make reports or provide certain information

(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 Civil and Administrative Tribunal,

(iv) proceedings before the Civil and Administrative 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) 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.

(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.

(5) (Repealed)

(6) In this section:

"court" includes a court exercising federal jurisdiction.

"law enforcement agency" means any of the following:

(a) the NSW Police Force,

(b) the Australian Federal Police,

(c) the police force of another State or Territory,

(d) a person or body prescribed by the regulations for the purposes of this definition.

"report" includes a report under sections 24, 25, 27, 120, 121 and 122.

"reportable conduct" means:

(a) reportable conduct within the meaning of Part 3A of the Ombudsman Act 1974 or conduct referred to in clause 2 of Schedule 1 to the Child Protection (Working with Children) Act 2012, or

(b) conduct occurring elsewhere than in New South Wales that, if occurring in New South Wales, would be reportable conduct under paragraph (a).

"senior officer" means:

(a) in relation to the NSW Police Force-a commissioned police officer within the meaning of the Police Act 1990, or

(b) in relation to any other law enforcement agency-a person (or class of persons) prescribed by the regulations as a senior officer of the agency.

"serious offence" means:

(a) a serious indictable offence within the meaning of the Crimes Act 1900, or

(b) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be an offence under paragraph (a).

Note: It is an offence under section 254 for a person to disclose any information obtained in connection with the administration or execution of this Act, except in certain circumstances. The maximum penalty is 10 penalty units (currently $1,100) or imprisonment for up to 12 months, or both."

THE ACCUSED'S SUBPOENAS AND THE TRIAL JUDGE'S DECISION

11 Prior to his trial, the accused caused subpoenas to be issued to the Department of Family and Community Services (misdescribed as "the Department of Community Services") for the production of reports relating to the child that he was accused of murdering and relating also to the child's mother. Having found that the reports were reports to which s 29 of the Act applied, the trial judge ordered that they be produced to the Court save to the extent that they disclosed or tended to disclose the identity of the persons who made them.

12 Redacted copies of the reports were produced to the Court, made available to the accused and utilised by the accused at his trial. As noted earlier, the accused was acquitted.

13 Before making the order for production of the reports, the trial judge rejected the submission made by the Director-General of the Department that s 29 of the Act prevented the Court from making it. The judge relied upon the principle of legality, finding that the accused's fundamental common law right to a fair trial would be jeopardised if s 29 were construed to preclude the Court from ordering production of the reports and that the Act did not manifest any clear intention that the section should be so construed.

14 The trial judge also rejected the Director-General's submission that the reports were privileged (and therefore should not be the subject of an order compelling production) because s 29(1)(d) rendered them inadmissible in the proceedings. The trial judge held they were in fact at least prima facie admissible by reason of s 29(1)(d)(iii).

THE CONSTRUCTION ARGUMENT

Authorities concerning the principle of legality

15 In X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92 at [86], Hayne and Bell JJ quoted with approval the principle stated by O'Connor J in Potter v Minahan [1908] HCA 63; 7 CLR 277 at 304 that:

"It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness."

16 The principle of legality dictates that "[a] statute said to affect important common law rights and procedural and other safeguards of individual rights and freedoms will be construed 'as effecting no more than is strictly required by clear words or as a matter of necessary implication'" (Lee v New South Wales Crime Commission [2013] HCA 39; 87 ALJR 1082 at [29] per French CJ; see also [126] per Crennan J; [307]-[314] per Gageler and Keane JJ).

17 As explained by Mason CJ, Brennan, Gaudron and McHugh JJ in Coco v The Queen [1994] HCA 15; 179 CLR 427 at 437:

"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".

18 The rationale for requiring that the Parliament make clear its intention to interfere with fundamental rights and freedoms was identified in the following observations of Lord Hoffmann in R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115:

"The constraints upon [Parliament's power to legislate contrary to fundamental rights] 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" (at 131).

19 As stated by Gageler and Keane JJ in Lee, the application of this principle of construction "is not confined to the protection of rights, freedoms or immunities that are hard-edged, of long standing or recognised and enforceable or otherwise protected at common law. The principle extends to the protection of fundamental principles and systemic values" (at [313]).

Authorities concerning the right to a fair trial

20 The right of every accused person to a fair trial according to law is well-established (see X7 per French CJ and Crennan J at [37] and the authorities cited therein).

21 That right encompasses not only the trial itself but the activities and processes which occur prior to and in preparation for trial. As French CJ and Crennan J observed in X7:

"An accused's right to a fair trial is commonly 'manifested in rules of law and of practice designed to regulate the course of the trial', but the right extends to the whole course of the criminal process" (citations omitted) (at [38]).

22 In Alister v The Queen [1984] HCA 85; 154 CLR 404 Brennan J canvassed the historical development of an accused person's right to compulsory process to secure the attendance of witnesses, before stating that:

"It is so basic and important an aspect of our criminal procedure that a trial in which the right is denied cannot be, in my opinion, a trial according to law. There is no distinction to be drawn in this respect between a subpoena ad testificandum and a subpoena duces tecum" (at 451).

23 It follows that the ability for an accused person to seek access to relevant (and potentially decisive) material for the purpose of defending criminal charges brought against him or her is an aspect of the overarching right to a fair trial.

Observations concerning s 29 of the Act

24 First, it is apparent from the terms of s 29 that its purpose is to provide protections to persons who make reports in good faith to the Director-General concerning children or young persons who are at risk of harm or are homeless. In part, the section protects a person who makes a report against professional sanctions and civil liability. Importantly, it also seeks to protect reporters against disclosure of their identity. It does this for the obvious reason that persons criticised or otherwise referred to in such reports may visit consequences on the reporter and the prospect of that occurring may deter or inhibit persons from making reports.

25 This object is particularly addressed by s 29(1)(f) but it is notable that the prohibition imposed by that paragraph on disclosure of the identity of the person who makes a report is not absolute. Disclosure may occur with the consent of that person or with "the leave of a court or other body before which proceedings relating to the report are conducted".

26 Section 29's intent to provide protection to reporters and informants by this and other means is confirmed by its heading which, whilst not part of the Act (Interpretation Act 1987 (NSW), s 35), may be referred to as relevant extrinsic material (ibid, s 34(1)(a)). To similar effect are the Second Reading Speeches relating to s 29 in its original form and as amended in 2000 and 2011. As the relevant Minister said in her Second Reading Speech prior to the statute's enactment in 1988:

"The unfortunate reality is that for many people concern that they may be identified as the reporter is a strong impediment to their reporting such children. Clause 29 of this bill significantly extends the protections offered to people making reports" (at 9761).

27 Secondly, whilst s 29(1)(e) precludes a person from being compelled to produce reports or disclose their contents, the Act does not prohibit the voluntary production of reports or disclosure of their contents, provided that the identity of the reporter is not disclosed except in accordance with s 29(1)(f). If, as its terms suggest, s 29(1)(e) precludes an accused person from compelling the Director-General to produce reports at the accused's trial, the outcome of the trial could be significantly influenced by a decision of the Director-General as to whether or not to produce the reports voluntarily. Similarly arbitrary consequences might flow from the exceptions to inadmissibility stated in s 29(1)(d). If parties to the there-identified proceedings chose to tender reports of which they had possession, the other parties to the proceedings, including any persons who were unable to compel their production, would be provided with copies of the reports. As a result, the latter's rights could be significantly affected by the decision of the former to tender the reports.

28 These observations demonstrate that the protections afforded by s 29 are by no means absolute and that the section does not exhibit an intention to preclude a person such as the accused in the present case from ever coming into possession of relevant reports made by other persons to the Director-General. Rather, the intention is limited to precluding production from being compelled.

Conclusion concerning the proper construction of s 29

29 In my view s 29 should not be construed so as to preclude the accused in a criminal trial from compelling, by subpoena, production of s 29 reports that are relevant to the issues at the trial. Thus, I consider that the principle of legality to which I have referred above (see [15] to [19]) requires that the general words of s 29(1)(e) be read down so as not to interfere with the accused's right to a fair trial. As indicated above (see [21] to [23]), that right relates to the "whole course of the criminal process" and includes an accused's right to require third parties to produce relevant documents on subpoena duces tecum.

30 The legislature has not expressed its intention to abrogate this right "with irresistible clearness" (see [15] above) or "by unmistakable and unambiguous language" (see [17] above). In the words of Lord Hoffmann (see [18] above), the legislature has not "squarely confront[ed]" the issue and "general or ambiguous words" are insufficient to abrogate such a right.

31 The terms of s 29(1)(f) provide some confirmation that the present issue was not addressed by the legislature. That paragraph prohibits disclosure of the identity of a reporter without either the consent of that person or the leave of the court or other body before which proceedings relating to the report are conducted. Thus, a court could, if it considered "that the evidence is of critical importance in the proceedings and that failure to admit it [into evidence] would prejudice the proper administration of justice" (see subsection (2)), permit the disclosure of the identity of a report-maker. It would be anomalous if a court were prevented by s 29(1)(e) from requiring a witness to give evidence of the contents of a s 29 report but could nevertheless require the witness to identify the maker of the report. This would conflict with the apparent purpose of s 29 to protect reporters rather than to protect the contents of reports as an end in itself.

32 The view that s 29 is concerned to protect the identity of reporters rather than to preclude disclosure of the contents of reports as such is confirmed by the contemplation in s 29(1)(d) that reports may be admitted into evidence in various specified court proceedings. The section does not require confidentiality orders to be made in relation to reports so admitted, save that s 29(1)(f) restricts disclosure of the identity of the reporter.

33 It follows from the above that the trial judge did not err in construing s 29 and making an order for production of s 29 reports. The three questions submitted by the Attorney General to this Court (see [3] above) should therefore be answered in the negative.

34 In conclusion I should refer to the alternative submission put on behalf of the accused that s 29(1)(e) did not prevent the trial judge from compelling production because the order was not directed to a "person" within the meaning of that paragraph.

35 The accused's subpoenas were directed to the Department of Community Services but the parties agreed that they should be treated as if the Department had been correctly named as the Department of Family and Community Services. Counsel instructed to argue the submitted questions on behalf of the accused in this Court submitted that the Department was not a "person" within the meaning of s 29(1)(e) and that the prohibition in s 29(1)(e) accordingly did not apply.

36 New South Wales state government departments such as the Department of Family and Community Services do not have separate legal personality but are rather "aspects or manifestations of the Crown in the right of the State of New South Wales" (Haines v Tempesta (1995) 37 NSWLR 24 at 30). The State is, in turn, a "body politic" (Lipohar v The Queen [1999] HCA 65; 200 CLR 485 at [48] and [107]; Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) [2011] NSWCA 363 at [50]; and Sneddon v State of New South Wales [2012] NSWCA 351 at [206]).

37 The inclusive definition of "person" in s 21 of the Interpretation Act 1987 applies to the word "person" in s 29(1)(e) of the Children and Young Persons (Care and Protection) Act. That definition includes within the meaning of "person", "a body corporate or politic". As the subpoenas in question were directed to a manifestation of a body politic, being the State of New South Wales, they were directed to a "person". The alternative construction argument advanced on behalf of the accused is therefore rejected.

THE CONSTITUTIONAL VALIDITY OF S 29(1)(e)

38 As an alternative to the construction argument with which I have dealt above, counsel on behalf of the accused argued that s 29(1)(e) of the Act is constitutionally invalid because it requires the Supreme Court of New South Wales to conduct proceedings in a fashion which substantially impairs, or is incompatible with or repugnant to, the Court's institutional integrity. This situation is in turn said to be incompatible with the Court's role as a repository of the judicial power of the Commonwealth.

39 Counsel relied upon the principles stated in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; 189 CLR 51 which were referred to by the plurality in Pollentine v Bleijie [2014] HCA 30 as follows:

"42. ... The principles have their roots in Ch III of the Constitution and limit State legislative power. '[T]he Parliaments of the States [may] not legislate to confer powers on State courts which are repugnant to or incompatible with their exercise of the judicial power of the Commonwealth.' And it is now the accepted doctrine of the Court that, as Gummow J said in Fardon, 'the essential notion is that of repugnancy to or incompatibility with that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system'. But, as the plurality in Pompano also pointed out, the repugnancy doctrine 'does not imply into the Constitutions of the States the separation of judicial power mandated for the Commonwealth by Ch III'. Hence, 'the notions of repugnancy to and incompatibility with the continued institutional integrity of the State courts are not to be treated as if they simply reflect what Ch III requires in relation to the exercise of the judicial power of the Commonwealth'" (citations omitted).

40 The general features of the judicial process were described by Gaudron J in Re Nolan; Ex parte Young [1991] HCA 29; 172 CLR 460 as follows:

"... open and public enquiry (subject to limited exceptions), the application of the rules of natural justice, the ascertainment of the facts as they are and as they bear on the right or liability in issue and the identification of the applicable law, followed by an application of that law to those facts" (at 496) (emphasis added).

41 This description was quoted with approval by the plurality in Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; 87 ALJR 458 at [142].

42 It is well-established that the Parliament has the power to regulate criminal trials by enacting laws relating to evidence and procedure, including laws which prescribe what evidence may or may not be used in those proceedings. However, as noted in Nicholas v The Queen [1998] HCA 9; 193 CLR 173 by Toohey J:

"It might be necessary, in a particular situation, to look closely at the consequences of rejecting or admitting the evidence. Those consequences may, for instance, be so inimical to the idea of a fair trial that a question arises as to the power of the legislature, at any rate where the judicial power of the Commonwealth is involved" (at [53]).

43 Mr Dhanji SC submitted on behalf of the accused that the fact that the result of a trial such as that of the accused might be "affected by an arbitrary decision made by a non-judicial body and unreviewable by the court before which the proceedings are conducted, is apt to undermine public confidence in the administration of justice". He submitted that whilst the Department of Family and Community Services could not, on the Attorney General's construction of s 29, be compelled to produce s 29 reports, it was open to the Department to produce them voluntarily to whoever it thought fit and thereby potentially affect the outcome of the trial by its voluntary act.

44 In reliance upon Pompano at [88], he also submitted that it was a factor against constitutional validity that the Supreme Court did not "retain decisional independence" or "the powers necessary to mitigate the extent of the unfairness" to an accused. He submitted that the unfairness involved in precluding the accused from obtaining relevant material from third parties was emphasised by the fact that the Court would never know whether an accused was in fact denied a fair trial in particular circumstances.

45 In response, the Attorney General submitted that the legislation did not lead to any departure, or at least not any radical departure, from conventional procedure in that the decision as to whether documents fell within a category where production could be resisted was left to the Court.

46 In my view the accused's constitutional invalidity argument should be rejected. The argument needs to be considered on the hypothesis (which I have found not to be the case) that, as a matter of construction, s 29(1)(e) precludes an order being made in favour of an accused for the Department to produce the s 29 reports in question. This would have been found to be the correct construction of the provision only if the Court had concluded that the legislature had made plain its intention to interfere with the important rights of the accused to which I have earlier referred. If the assumption is made that the legislature did this, the accused's argument of constitutional invalidity must in my view fail.

47 Clearly the State Parliament has authority to enact laws regulating the conduct of criminal trials within the State. Unquestionably, in respect of many issues, the Parliament must balance competing interests and objectives. Here the Parliament had to balance the undoubtedly desirable objective of encouraging reporting of issues affecting the safety, welfare or well-being of children and young persons with the objective of ensuring that accused persons receive fair trials. If, as must be assumed when considering the constitutional invalidity argument, the legislature considered not only the former but also the latter objective, it would be difficult to conclude that the institutional integrity of the Court was undermined unless Parliament's considered decision could be regarded as quite outside the bounds of a reasonable attempt to reconcile those competing objectives. In my view, the legislation in question here cannot be described as either arbitrary or manifestly disproportionate to the issues at stake (see KS v Veitch (No 2) [2012] NSWCCA 266; 84 NSWLR 172 at [64] per Basten JA referring to Williamson v Ah On [1926] HCA 46; 39 CLR 95 at 117). As with the law in question in Veitch, s 29(1)(e) does not "deprive [an] accused of some source of information to which he is presumptively entitled" nor, bearing in mind the competing objectives which it attempts to attain, is it "a law which would tend to bring the criminal trial process into disrepute" (Veitch at [65]).

48 Whilst, on the Attorney General's construction, s 29(1)(e) constitutes an erosion of an accused's right to a fair trial, it is not (on the assumption that I make at this point in the argument) an erosion that has occurred without careful consideration and attention to rational competing objectives. As such, it is not an erosion of such a type or magnitude that should be regarded as interfering with the institutional integrity of the Supreme Court (compare the observation of Toohey J in Nicholas referred to in [42] above). It is not therefore "repugnant to the judicial process in a fundamental degree" (International Finance Trust Company Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319 at [140] per Heydon J citing Gummow J in Kable at 132).

CONCLUSION

49 For the reasons above, negative answers should be given to each of the following three questions submitted by the Attorney General to this Court for determination:

(1) Did [the trial judge] err in construing s 29 of the Children and Young Persons (Care and Protection) Act 1998 (the Act) as enabling a Court to order production to the Court in response to a subpoena and over objection of reports under Part 2 of the Act except insofar as they disclosed or tended to disclose the identity of the person or persons who made the reports?

(2) Did [the trial judge] err in construing s 29(1)(e) of the Act?

(3) Did [the trial judge] err in making the order for [production]?

50 As the accused has not been represented in the proceedings in this Court other than by counsel for whose reasonable costs the Attorney General or Director of Public Prosecutions is responsible under s 108(4) of the Crimes (Appeal and Review) Act, it is unnecessary to make any order for costs.

51 BELLEW J: I agree with Macfarlan JA.

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Decision last updated: 06 November 2014