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Children's Court New South Wales
CLN 2020
CLN 1 - July 2020
NSW Court of Appeal
APPEALS – civil procedure – summary disposal – dismissal of proceedings – no reasonable cause of action disclosed – whether trial judge erred in dismissing proceedings – whether instituting criminal proceedings to vex the accused is within the lawful scope of the criminal process – non-publication order – Court Suppression and Non-Publication Orders Act 1998 (NSW).
Hackett v Secretary, Department of Communities and Justice [2020] NSWCA 83
ADOPTION – “Aboriginal child” - whether necessary to identify ancestor who was a member of Aboriginal race, identified as Aboriginal and was recognised by Aboriginal community - consideration of text, context and purpose of s 4 of Adoption Act 2000 (NSW).
NSW Court of Criminal Appeal
The Secretary of the Department and Family and Community Services v ZL [2019] NSWCCA 135
CRIMINAL LAW – subpoena – application to set aside subpoena – application refused in District Court – whether documents caught by subpoena a “report” under child care legislation – where subpoena did not call for report on its face – where primary Judge protects confidential information by ordering redaction of documents.
CRIME – Youth- Terrorism offences – Aid, abet, counsel or procure the commission of terrorist act
CRIME – Appeal against sentence – Whether error in sentencing applicant on basis that prospects of rehabilitation were poor.
CRIMINAL LAW – sexual intercourse with child under 10 – young offender – assault by halfbrother – retraction of complaint in cross-examination – finding that complainant’s court evidence unreliable – counsel not informed of finding of unreliability during cross-examination – whether procedural unfairness.
CRIMINAL LAW – appeal – custodial sentence –– offender a minor with intellectual disabilities – whether denunciation of offending inconsistent with rejection of general deterrence – whether judge took offender’s vulnerabilities into account.
CRIME – SENTENCE APPEAL – joint criminal enterprise robbery – role in crime – sentencing judge erred in applying Guideline Judgment in Henry without assessing relative youth of offender.
NSW Supreme Court
A v Secretary DCJ (No 4) 2019 NSWSC 1872
CHILD WELFARE — Family Law — Children in need of care and protection — Dismissal of appeal from Presidents decision.
TR v Constable Cox & Ors [2020] NSWSC 389
STATUTORY APPEAL – appeal from a decision of the Local Court under s 53(3)(b) Crimes (Appeal and Review) Act – refusal of a magistrate to grant applications – applications for a female magistrate to hear summary criminal proceedings – application for a change of venue - application to exclude men, including male witnesses from access to evidence.
CRIMINAL PROCEDURE - Stay of proceedings - inherent power to prevent abuse of process - appeal from decision of Children’s Court where stay refused - case involving assault of police officers by a minor
APPEAL - from Children’s Court - by leave - where necessary to show question of law involved - where prerogative relief also sought – whether Magistrate asked the right question.
NSW Children’s Court
Department of Communities and Justice (DCJ) and Teddy [2020] NSWChC 1
CHILDREN – Care and protection – Short Term Orders – s 79(9) of the Care Act
Department of Communities and Justice (DCJ) and Jake [2020] NSWChC 2
CHILDREN -Care and protection – Short Term Orders – Permanency principles – Adoption.
Department of Communities and Justice (DCJ) and Jack and Jill [2020] NSWChC 3 3
CHILDREN - Care and protection – Short Term Orders- Permanency plan involving guardianship.
CRIME – Young Persons- Retrospectivity of defence under s.80AG.
CHILDREN – Care and protection – Short term orders – Permanent permanency principles – Adoption
Department of Family and Community Services (DFaCS) and Amber [2019] NSWChC 10
CHILDREN – Care and protection – Reports under s 82 of the Care Act – effect of late filing of s 82 Reports – finality of litigation – when the jurisdiction of the Children’s Court ends.
Department of Family and Community Services and the Jacobs children [2019] NSWChC 11
CHILDREN - Care and protection - supervision order - late filing of the supervision report ordered pursuant to s 76(4) - effect of lateness - finality of litigation and the extinguishment of jurisdiction beyond the date of the supervision order.
Supreme Court of Western Australia - Court of Appeal
Abdul v The Queen [2020] WASCA 34
CRIMINAL LAW - Jurisdiction - Whether the appellant was aged under 18 years at the time of allegedly committing an offence - Whether the District Court or the Children's Court had jurisdiction to hear and determine the charge of the offence - Where appellant was convicted in the District Court on his plea of guilty of an offence against s 232A of the Migration Act 1958.
Papers
Article by Stephan Herridge, “Shorter Term Care Order Synopsis” June 2020 (PDF , n/a)
CLN 2 - December 2020
High Court of Australia
Pickett v Western Australia [2020] HCA 20
Criminal law – Parties to offences – Where group of eight males assaulted victim – Where group included appellants and a youth aged 11 years ("PM") – Where one member of group stabbed victim causing death – Where appellants charged with murder under Criminal Code (WA) – Where Crown alleged seven males who did not stab victim deemed to have taken part in committing offence under s 7(b), s 7(c) or s 8 of Criminal Code – Where ss 7(b), 7(c) and 8 of Criminal Code operated when "an offence is committed" – Where reasonably possible that PM inflicted fatal stab wound – Where PM could not be criminally responsible for acts unless he had capacity to know he ought not to do act under s 29 of Criminal Code – Where prosecution adduced no evidence to establish capacity – Where trial judge declined to direct jury that they could not convict appellants of murder unless satisfied beyond reasonable doubt PM did not cause death – Where appellants convicted of murder– Whether trial judge erred in declining to direct jury that they could not convict appellants of murder unless satisfied that PM did not cause death – Whether "offence" committed for purposes of ss 7(b), 7(c) and 8 where failure to prove criminal responsibility of person who may have done act constituting offence.
Words and phrases – "accessorial criminal liability", "an offence is committed", "authorised or justified or excused by law", "commission of an offence", "common law antecedents", "construction of the Code", "criminally responsible", "enabler or aider", "excuse", "justification", "liable to punishment", "offence", "participants in the offence", "parties to the offence", "party to an unlawful common purpose", "principal offender", "unlawful killing".
APPEALS – civil procedure – summary disposal – dismissal of proceedings – no reasonable cause of action disclosed – whether trial judge erred in dismissing proceedings – whether instituting criminal proceedings to vex the accused is within the lawful scope of the criminal process – non-publication order – Court Suppression and Non-Publication Orders Act 1998 (NSW).
Federal Court of Australia
Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138
CORPORATIONS – legal capacity and relations with outsiders – extend litigation procedure – appearance in court by company and representation – application by company to be represented in proceedings by non-lawyer – matters which may be considered– no evidence of company’s financial circumstances – complex case too difficult for proposed lay representative– no explanation for delay in applying for leave.
PRACTICE AND PROCEDURE –self-represented litigant – duty of court to assist – extent of court’s obligations – absence of detriment flowing from any alleged lack of instruction from trial judge.
NSW Court of Appeal
JE v Secretary, Department of Family and Community Services (No 2) [2020] NSWCA 243
ADMINISTRATIVE LAW – judicial review – appeal from Children’s Court to District Court – whether error of law on the face of the record or jurisdictional error established – no error made out.
PRACTICE – representation of children and young persons in judicial review proceedings – common interest with Secretary – nature of appropriate representation in such cases.
NSW Court of Criminal Appeal
CRIMINAL LAW — appeal against conviction — whether miscarriage of justice occasioned by admission of evidence of the complainant — whether complainant competent to give evidence.
CRIMINAL LAW — appeal against conviction — whether evidence capable of supporting guilty verdict.
CRIME – sentence – appeal against severity – armed robbery – multiple offences in company – youth – low cognitive functioning – manifest excess.
SENTENCE – disproportion between overall sentence and non-parole period – no presumption that offender will be released on completion of non-parole period – balance of term excessive.
CRIME — Appeals — Appeal against convictions for non-compliance with Child Protection Prohibition Order and reporting requirements — Child Protection Prohibition Order annulled — Not contested by Crown.
CRIME — Appeals — Appeal against sentence — Where two aggregate sentences imposed for State and Commonwealth offences — Where aggregate sentence imposed for Commonwealth offences must be set aside — Remittal to sentencing judge.
CRIMINAL LAW – appeal – appeal against sentence – aggravated break, enter and commit serious indictable offence – robbery in company – sentencing judge had regard to Children’s Court criminal history – error established – manifest excess – Bugmy principles – youth and history of dysfunction – parity – re-sentencing.
CRIMINAL LAW - appeals - sentencing - historical offences - indecent assaults of a male and attempted buggery.
SENTENCING - appeal against sentence - severity - applicant a young person at time of offending - where victim six years younger - where offending endured for a number of years and involved different forms of activity - some offences opportunistic and others involving planning - whether sentencing judge erred by assessing objective seriousness of four offences on a collective basis - whether sentencing judge failed to take into account the sentencing options under the Child Welfare Act 1939 (NSW) - whether sentencing judge erred in finding that the offending resulted in substantial injury - whether sentence manifestly excessive - appeal allowed.
CRIMINAL LAW – Sentence appeal – exceptional subjective circumstances – youth, ADHD and autism – serious offence – psychology reports show no or very little risk of similar re-offending – in circumstances, sentence imposed outside legitimate discretion available – manifest error – offender re-sentenced.
APPEAL - sentence - applicant pleaded guilty to child pornography and grooming offences - offences of using carriage service to solicit child pornography material contrary to s.474.19(1)(a)(iv) Criminal Code (Cth) (two offences), using carriage service to groom a person under 16 years for sexual activity contrary to s.474.27(1) Criminal Code (Cth) (one offence) and possession of child abuse material contrary to s.91H(2) Crimes Act 1900 (NSW) (one offence) - offence of using carriage service to menace, harass or cause offence contrary to s.474.17(1) Criminal Code (Cth) taken into account on sentence under s.16BA Crimes Act 1914 (Cth) - 18-year old applicant committing offences against young victims - objective gravity of offences - finding by sentencing judge that applicant’s mental condition and immaturity reduced moral culpability with less weight to be given to specific deterrence and general deterrence - fulltime custodial sentence imposed with applicant to be released on recognizance release order after 15 months - alleged failure to consider whether alternative to fulltime imprisonment was available for Commonwealth offences - error not demonstrated - alleged failure to give any weight to utilitarian value of guilty pleas for Commonwealth offences - error not demonstrated - alleged erroneous reliance upon other sentencing decisions to identify sentencing range in manner which failed to give effect to findings favourable to applicant - error established - other sentencing decisions dissimilar to applicant’s case in significant respects - other sentencing decisions did not identify sentencing range - principles to be applied in use of other sentencing decisions on sentence - resentencing of applicant under s.6(3) Criminal Appeal Act 1912 (NSW) - objective gravity of offences - harm done to child victims of cybersex offences - offences involved real victims and not police officer posing as a child - applicant manipulated, threatened and humiliated victims - troubled and immature 18-year old offender - applicant’s moral culpability reduced and lesser role for specific and general deterrence - fulltime custodial sentence nevertheless appropriate - applicant resentenced to imprisonment to be released after 11 months on recognizance release order.
NSW Supreme Court
GR v The Department of Communities & Justice and Ors [2020] NSWSC 1622
CHILD WELFARE — Care proceedings — Independent Legal Representative for the child or young person — Whether Independent Legal Representative for the child should be removed or replaced.
CHILD WELFARE — Care proceedings — Guardian ad litem — Whether s 98(2A) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) requires the Court to appoint a guardian ad litem where child or young person is a party to the proceedings and the Court is of the opinion that they are incapable of giving proper instructions to a legal representative — Interaction between ss 98(2A), 100 and 101 of the Children and Young Persons (Care and Protection) Act 1998 (NSW).
CHILD WELFARE — Care proceedings — Parties to care proceedings — Whether Independent Legal Representative for the child or young person should be a party to proceedings — Whether child or young person should be a party to care proceedings.
A v Secretary, Department of Communities and Justice (No. 5) [2020] NSWSC 1340
PRACTICE AND PROCEDURE – summary dismissal – abuse of process – where proceedings commenced in the Supreme Court seeking relief in the parens patriae jurisdiction of Court – where the basis for the relief sought seeks to re-litigate issues determined in previous proceedings in the Children’s Court and on appeal to the Supreme Court – proceedings dismissed as an abuse of the process of the Court.
Kindermann v JQ [2020] NSWSC 1268
CRIMINAL PROCEDURE – Forensic Procedure – Interim order on minor – permitted without hearing.
LOCAL COURT – jurisdiction – mistake as to jurisdiction to order interim forensic procedure on child without hearing from the person.
Director of Public Prosecutions (NSW) v SB [2020] NSWSC 734
APPEAL – arrest without warrant – invalidity of charges – whether objective test under s 99(1)(b) of Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) – reasonably necessary to arrest – notice of contention rejected – lawfulness criteria – appropriateness – appeal allowed – remitter.
PQR v Director of Public Prosecutions (NSW) [2020] NSWSC 731
CRIME — Appeal and review — Appeal from Children’s Court to Supreme Court — By person against whom an interlocutory order is made with leave on a question of law alone — where plaintiff charged with offences alleged to have been committed against three complainants — ruling that evidence of each complainant be cross-admissible as tendency evidence — order refusing separate hearings — whether Magistrate gave adequate reasons.
EVIDENCE — Tendency evidence — Criminal proceedings — whether Magistrate failed to consider Evidence Act 1995 (NSW) s 101(2).
NSW Children’s Court
CRIMINAL LAW – doli incapax – s.66 Young Offender’s Act – admissibility of warning.
Department of Communities and Justice (DCJ) and Ryan Masters [2020] NSWChC 7
CHILDREN – Care and protection - rescission of Care Orders – standing - shared parental responsibility with Minister for cultural up-bringing - sufficient interest in the welfare of a child – subsequent s 90 applications – meaning of series of applications for leave – self-placement – significant change in relevant circumstances – arguable case – working with children check – applicable factors for s 90 leave following amendment of Care Act.
Victorian Supreme Court of Appeal
Schembri, Nathan v The Queen [2020] VSCA 217
CRIMINAL LAW – Appeal – Sentence – Sexual penetration of child under 16 (3 composite charges) – Drug trafficking (6 charges) – Total effective sentence 5 years’ imprisonment, non-parole period 2 years, 6 months – Sexual penetration sentences from 3 years to 3 years 6 months – Whether manifestly excessive – Difference in age and maturity – Applicant was 18, victim 13 – Distinct episodes – Persistent offending – Applicant aware sexual activity unlawful – Whether sufficient weight given to guilty pleas, prior good character, youth, good prospects of rehabilitation, remorse and delay – Sentence within range – Leave refused – Clarkson v The Queen (2011) 32 VR 361; [2011] VSCA 157 considered.
CRIMINAL LAW – Trial – Procedure – Pleading – Indictments - Charging practices – Use of ‘composite charges’ deprecated – Holland (a Pseudonym) v The Queen [2018] VSCA 241 followed.
Queensland Court of Appeal
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – JUDGE ACTED ON WRONG PRINCIPLE – where the applicant is a child – where the applicant pleaded guilty to one count of armed robbery in company – where the applicant was sentenced to a period of detention of eight months with an order that he be released immediately, after serving 140 days on remand, and on conditional release for three months – where a conviction was recorded – where the applicant seeks leave to appeal the recording of a conviction on the ground that the sentencing judge failed to take into account relevant considerations – where the primary reasons given for the recording of a conviction were the seriousness of the charge and the applicant’s criminal history – where the sentencing judge failed to consider relevant countervailing factors and the pre-sentence report – where regard must be had to all the relevant circumstances – whether the sentencing discretion miscarried.
CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – DISCRETION TO RECORD CONVICTION – RELEVANT CONSIDERATIONS – where the applicant is a child – where the applicant pleaded guilty to one count of armed robbery in company – where the applicant was sentenced to a period of detention of eight months with an order that he be released immediately, after serving 140 days on remand, and on conditional release for three months – where a conviction was recorded – where the starting point is that no conviction be recorded – where all the circumstances of the case must be considered – where the applicant was deemed suitable for supervision – where prospects of rehabilitation remained – whether the conviction should be recorded.
Papers
Article by Children’s Registrar Simon Handebo, “Non-accidental Injury and the Children’s Court: Some Legal and Practical Observations” (PDF , 724.2 KB) (PDF , 708.4 KB)
Last updated:
19 Feb 2021
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