The Application of the Attorney General for New South Wales dated 4 April 2014 [2014] NSWCCA 251

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