Secretary, Department of Family and Community Services v ZL

1. [1]

   HOEBEN CJ AT CL: I agree with the analysis by Hamill J of the Children and Young Persons (Care and Protection) Act and its application to the facts of this case. I reserve my position in respect of the matters raised by His Honour in [50], [51] and [52] of his judgment.

2. [2]

   WHITE JA: The circumstances giving rise to this appeal are set out fully in the reasons for judgment of Hamill J which I have had the advantage of reading in draft. I agree with his Honour’s judgment. As we are differing from the primary judge I will state my own reasons concisely.

3. [3]

   The terms of the subpoena as amended in the course of argument before the District Court sought the production of “any complaint made by the complainant to the Department or any employee of the Department in relation to allegations of sexual misconduct against [the complainant] by the accused.”

4. [4]

   A subpoena in those terms does not on its face call for the production of a report within the meaning of ss 3 or 29(6) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“The Act”). Section 29(1)(d) of that Act applies where a person makes a report in good faith in relation to a child or young person or a class of children or young persons. On the face of the subpoena (as amended orally) the accused did not seek a report made by the complainant in relation to allegations of sexual misconduct by the accused in relation to anyone except the complainant herself. Moreover there could be no suggestion that when the report was made the complainant was a child or young person, nor that she was “at risk of significant harm” as that expression is defined in s 23. The primary judge correctly noted (at [30]):

5. [5]

   The primary judge correctly framed the relevant issue (at [33]) as follows:

6. [6]

   Her Honour had regard to the terms of the legislation and to s 33 of the Interpretation Act 1987 (NSW) that provides that a construction that would promote the purpose or object underlying the Act to be preferred to a construction that would not promote that purpose or object. Her Honour referred to Secretary, Department of Family and Community Services v Hayward (a pseudonym) [2018] NSWCA 209 at [61] for the proposition that the legislative purpose of s 29 was to protect the identity of the maker of a report of a risk of significant harm so as to encourage the reporting of matters and observed that no question of promoting that objective arises in the present case because it is known that the complainant made a report (at least known in the sense that she made a complaint) to the Department.

7. [7]

   The primary judge’s dispositive reasoning was:

8. [8]

   The primary judge then ordered redaction of the document so that only those parts of it that contained the complainant’s report of her own alleged sexual abuse by the accused would be required to be produced.

9. [9]

   In essence, the primary judge’s reasoning was that the document called for by the subpoena (as amended) contained the complainant’s complaint about her own alleged sexual abuse and other material which constituted a report within the meaning of the Act and which was protected from disclosure.

10. [10]

    However, I agree with Hamill J that the document cannot properly be so characterised. I agree with the Secretary’s submission that the complainant’s own sexual abuse provided the ground for her assertion that there were current concerns for the safety, welfare or wellbeing of a child or young person or a class of children or young persons and hence was an integral part of the report. Section 29(1)(e) precluded the Department from being compelled to produce any extract from the report. Accordingly, the primary judge erred in concluding that an extract from the report could be required to be produced. That is so even if the extract, if it stood alone, would not be a report within the meaning of the Act. The fact is that the extract did not stand alone. The fact that production of the extract would not offend a purpose of the Act does not permit a construction that would be contrary to the terms of s 29(1)(e).

11. [11]

    I agree with the orders proposed by Hamill J.

12. [12]

    HAMILL J: This is an application pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) for leave to appeal against an order of the District Court dismissing a notice of motion to set aside a subpoena. The applicant is the Secretary of the Department of Family and Community Services (“FACS”, “the Department” or “the applicant”). The subpoena in question was directed to the applicant and required production of documents, including the record of allegations made by a complainant in a sexual assault case that is currently before the District Court. The respondent is the accused in those criminal proceedings. The Director of Public Prosecutions (a party to the criminal proceedings) did not appear or make submissions on the hearing of the appeal, although counsel attended with a “watching brief”.

13. [13]

    The application for leave to appeal was filed one day out of time and the applicant needs an extension of time. There is no opposition to that and time will be extended. The proposed appeal involves a significant issue of statutory construction, or at least the application of the statute to the particular and peculiar facts of the respondent's case. Leave should be granted and the appeal dealt with on its merits.

14. [14]

    The case is of some importance because it involves a consideration of provisions in the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“the Child Care and Protection Act”) calculated to protect the welfare of children and the confidentiality of people who make reports to the Department. Those provisions received consideration in two related cases of Hayward decided by the Court of Appeal and Court of Criminal Appeal in 2018. [1] The issues raised in the Hayward appeals were of such importance that both the Court of Appeal and the Court of Criminal Appeal sat a bench of five judges. The question raised in the present case is quite different to the issue decided in Hayward. However, a number of principles stated in those decisions, particularly concerning the purpose of the legislation, are relevant to the issues arising here. The primary Judge was conscious of, and applied, the reasoning in those decisions. In particular, her Honour was fastidious in giving effect to the statements of principle in those cases concerning the purpose of the particular statutory provisions considered in Hayward, and at the centre of the present dispute. That is, her Honour was conscious that the purpose of the legislative scheme was to protect the confidentiality and identity of people who made reports to the Department relating to a child being at risk of significant harm. In fact, the orders made by the primary Judge specifically protected the identity of any child who may have been at risk or referred to in the documents as well as masking the circumstances surrounding their creation by allowing (or ordering) the editing and redaction of the documents. However, the identity of the person making the report (that is, the complainant) was known and disclosed in the prosecution brief and police documentation that had already been provided to the respondent. The orders for production made by the primary Judge specifically required redaction of the material that might otherwise have made disclosure of information which ought to have been kept confidential.

15. [15]

    Even so, the applicant asserts that a proper construction of the statute means that the orders made by the primary Judge were contrary to the legislation in spite of their obvious attractiveness in balancing the interests protected by the Child Care and Protection Act and the interests of ensuring that the respondent (the accused in serious criminal proceedings) would have full disclosure of relevant information so that she might receive a fair trial.

16. [16]

    The applicant's submissions must be accepted and the appeal allowed. To understand that conclusion, it is necessary to set out in very short detail the background to the case.

Factual background

1. [17]

   The respondent is charged on an indictment containing five counts alleging various indecent and sexual assaults committed upon a child under 16. The offences were alleged to have occurred between 1979 and 1984. That is, the offences are something like 40 years old. The trial was listed to commence in the middle of January 2019.

2. [18]

   The complainant made a number of official police statements forming the basis of key evidence in the criminal proceedings. The first of these statements appears to have been made on 13 October 2014; that is about 30 years after the last of the offences. In making that statement, the complainant relied on typed notes she had prepared over the previous few months. On 26 March 2018, the complainant made a second statement to the police, clarifying a number of details in her first statement.

3. [19]

   However, many years earlier, in October 2002, the complainant spoke to police at Katoomba about the allegations. It seems no action was taken at that time but a “COPS event E15645461” was created. It read in part:

4. [20]

   There is no dispute that the reference to “DOCS” is a reference to the Department. Equally, there is no doubt that the narrative relates to the allegations that are now the subject of the criminal charges against the respondent. There are no details in the COPS entry as to the circumstances of the notification to DOCS/FACS. All that can be gleaned is that there was some kind of allegation made by the complainant to the Department or one of its officers concerning the subject matter of the criminal proceedings now brought against the respondent.

5. [21]

   In preparation for the criminal trial, the respondent's solicitors issued a subpoena to FACS seeking:

   1. (1)

      A copy of the report or notification made to DOCS (sic) by the complainant [redacted] as referred to in the COPS Event E15645461 at page 5.

   2. (2)

      Copies of any record of [complaint] or report made by [the complainant] to any person regarding [the accused] between 1 January 2000 to date.

6. [22]

   That subpoena was subject to the notice of motion brought by the applicant in the District Court. It can readily be seen why the accused sought production of those documents. There is, as the primary Judge found, a clear and substantial forensic purpose in an accused person charged with such very old offences having information concerning any narrative of events or complaint made by their accuser. This is not a case where the recipient of the subpoena contends that the accused is “fishing” for information or that the material sought was not relevant to the proceedings. Rather, the applicant contended that the documents sought to be obtained were protected by the Child Care and Protection Act. The submission is there can be no legitimate forensic purpose in attempting to obtain documents which, by force of statute, cannot be required to be produced and/or cannot be adduced in evidence. Put another way, the applicant submits that it is an abuse of the Court’s process to require production of documents that, by force of the statute, cannot be produced.

7. [23]

   It is clear that the respondent’s lawyers, in issuing the subpoena, were of the belief that the documents sought concerned only the complainant herself. There was no hint in the COPS event or any other material that the documents in question may have concerned anybody else.

8. [24]

   There was correspondence between the applicant's lawyers and the lawyers appearing for the accused. That correspondence did not resolve the issue. The defendant sought to enforce the subpoena and the applicant filed its notice of motion in the District Court seeking an order in the following terms:

   1. (1)

      The subpoena issued to the Proper Officer of the Department of Family and Community Services, issued by this Honourable Court, on behalf of the Accused be set aside as an abuse of process on the grounds that it:

9. [25]

   This preliminary issue came on for hearing shortly before the trial was due to commence. The argument was heard on 14 January 2019 and her Honour reserved her decision overnight. On 15 January 2019 there were further brief submissions and reliance was placed on some additional documents. The primary Judge proceeded to publish her judgment, essentially ex tempore.

10. [26]

    Her Honour dismissed the notice of motion seeking to have the subpoena set aside but made orders that any documents produced under the subpoena should be edited or redacted in such a way that the only information disclosed was the narrative of events provided by the complainant relevant to the serious charges faced by the defendant.

11. [27]

    I interpolate to say this: the orders made by Judge Yehia SC accorded with the purpose of the statutory scheme by protecting the identity of anyone whose identity was not already known to the accused, and disclosing no details of any child or children who may have been thought to be at risk. As I have said, the fact that the complainant made a statement to the Department some time previously was disclosed to the accused in the COPS event, which made specific, albeit general and passing, reference to it. However, unknown to the respondent’s lawyers, the document or record in question was not a "stand alone" statement of the complainant but rather formed part of a larger document canvassing other issues, the details of which this Court (like the primary Judge) must be circumspect in describing.

The legislation

1. [28]

   It is now necessary to set out the terms of parts of the legislation. Chapter 3 of the Act is entitled ‘Requests for assistance and reports’. Section 23 provides:

2. [29]

   Section 3 defines ‘report’ as a report made under ss 24, 25 or 27.

3. [30]

   Section 24 provides:

4. [31]

   Section 25 concerns pre-natal reports.

5. [32]

   Section 27 concerns mandatory reporting and is in the following terms:

6. [33]

   Section 29 is the critical section for the purpose of the present dispute. It is calculated to protect the identity of persons who make reports or provide information to the Department. The section provides:

The motion in the District Court and the production of the documents to the Court

1. [34]

   When the notice of motion came on before the primary Judge, the applicant produced the relevant documents to the Court. They were not, and (it seemed to be agreed) could not be, shown to the respondent’s lawyers. Further, so that the matter could be discussed candidly with the Judge, the respondent and her lawyers were excluded (or absented themselves) from the Court during part of the argument and, specifically, that part of the argument where the details of the relevant documents were discussed. No issue has been taken on the appeal as to the appropriateness of the procedure. When the appeal was heard in this Court, the respondent’s lawyers were not aware of the contents of the documents and, as a result, counsel’s submissions were necessarily brief and were made by reference to various hypothetical situations.

2. [35]

   In the Hayward litigation, the Court of Appeal and the Court of Criminal Appeal stressed the purpose of s 29 and its interaction with the objectives of the Child Care and Protection Act set out in s 8:

3. [36]

   It is clear that the purpose of this part of the legislation is to ensure that people who are aware of circumstances that might suggest that a child is at risk of significant harm feel free to come forward and make reports and allegations to the Department. They should be able to do so without fear that their identity, or the details of what they say, might be disclosed to the possible perpetrators of child abuse or to anybody else. It is legislation calculated to protect the identity of people sometimes described as ‘whistle-blowers’. It is in absolute terms and is prescriptive.

4. [37]

   To comply with those objectives and that purpose, it is impossible in this judgment to describe in any detail what is contained in the documents caught by the subpoena. As the case was argued in this Court, the issue became whether the documents were a “report” within the terms of s 29 of the Child Care and Protection Act.

5. [38]

   It might first be observed that the terms of the subpoena itself refer to a "report or notification". That language supports the Department's argument that what was being sought was the kind of report to which ss 23, 24, 27 and, critically, 29 are directed.

6. [39]

   However, in the course of argument before the District Court, counsel for the accused agreed that the material sought was limited to:

7. [40]

   It was made very clear that the respondent (accused) was not seeking to discover or have disclosed the identity of somebody who had made a report in relation to another child being at risk. Rather, what was being sought was the complaint or allegation made by the complainant herself as to things that happened to her many years earlier. Her identity was already known, as was the fact that she had made some notification or allegation about those things to the Department.

8. [41]

   Similarly, the orders that the primary Judge crafted specifically were calculated to ensure, and did ensure, that there was no disclosure of material that would offend the purpose of s 29.

Resolution of the appeal

1. [42]

   Even so, if such an allegation and complaint forms part of a broader document that falls within the description of a “report”, as that term is used in the relevant sections and is caught by the prohibition in s 29, the Department cannot be compelled to produce the document and the document cannot be tendered in evidence. Not only that, but the terms of s 29 are more wide-reaching. They say that, not only can a person not be compelled to produce a report or a copy of the report, but it also prohibits production of any “extract from [the document] or to disclose or give evidence of any of its contents”.

2. [43]

   Accordingly, assuming the document is a report for the purpose of s 29, no extract from it or part of it, even a stand-alone allegation made by a complainant in contested criminal proceedings that can readily be extracted or excised, can be compelled to be produced or tendered or elicited in evidence.

3. [44]

   I have considered the documents caught by the subpoena which were in a sealed envelope provided by the District Court to this Court. I am unable to describe the contents without falling afoul of the legislation. Having perused the documents, I have little doubt that they constitute a “report” for the purpose of s 29. Accordingly, the applicant cannot be compelled to produce it, or an extract of it, or to give evidence of "any of its contents”.

4. [45]

   I am fortified in this view by the hypotheticals raised by the respondent's counsel in the course of his necessarily brief submissions to this Court. For instance the following exchange occurred in the course of the submissions:

5. [46]

   Counsel provided a second hypothetical:

6. [47]

   Asked by the presiding Judge where that fell on the spectrum, counsel responded – correctly, appropriately and inevitably:

7. [48]

   While counsel went on to refer to the substantial time delays in the present case, the hypotheticals postulated were apposite and the concession that they may fall within the definition of a “report” in the section properly made.

8. [49]

   It is unnecessary and inappropriate to refer in any more detail to the contents of the documents in question in the present case. All that I will say is that the documents are not very far removed from the type of document referred to in counsel’s hypothetical examples.

9. [50]

   The documents sought, that fall within the ambit of the subpoena as refined in the course of argument, constitute a report within the meaning of the Child Care and Protection Act. Whether the Parliament intended this result, which might be considered to be both absurd and potentially unfair, the Department cannot be compelled to produce it or any extract of it and no part of its contents can be tendered in evidence in the respondent’s trial. The appeal must be allowed.

Legislative amendment and the discretion to prosecute

1. [51]

   Before indicating the orders I favour, I should make it plain that the orders made by the trial Judge in the present case were calculated to balance the purpose of the child protection legislation, the interests of the accused and the community and to ensure a fair trial in serious criminal proceedings relating to events that are decades old. While those orders (on my reading of it) fell afoul of the precise terms of the Child Care and Protection Act, they accorded with the purposes of the legislation as explained in the Hayward litigation. It seems unlikely that the legislature intended for the legislation to cover an unusual case such as the present. The orders for editing and redaction of the documents would have been amply sufficient to ensure the purposes of the legislation were not offended. Whether legislative amendment is appropriate will be a matter for others.

2. [52]

   Further, it will be for the Director of Public Prosecutions to determine whether it is in the public interest to maintain the continued prosecution of the respondent for offences which allegedly occurred 40 years ago in circumstances where she will be denied potentially relevant evidence. There are many discretionary considerations at play in making the decision whether to continue this prosecution in the unusual circumstances of the case. Without the documents, the accused will be at a significant forensic disadvantage because they will not know when the first complaint was made or what the substance of that complaint was.

3. [53]

   In any event, these are questions and decisions for others to consider and make.

Orders

1. [54]

   The orders I favour are:

   1. (1)

      Grant an extension of time in which to file the application for leave to appeal.

   2. (2)

      Application for leave to appeal granted.

   3. (3)

      Appeal allowed.

   4. (4)

      Quash the order dismissing the notice of motion in the District Court.

   5. (5)

      Set aside the subpoena filed in the District Court directed to the Department of Community Services in proceedings H61638320.

   6. (6)

      Direct that the documents produced by the Department to the District Court and marked confidential Exhibit E be returned to the New South Wales Crown Solicitor’s Office to be kept securely and produced to this or any other Court in the event of any further appeals or proceedings.