R v Hayward [2017] NSWSC 1170

Supreme Court New South Wales

Medium Neutral Citation: R v Hayward [2017] NSWSC 1170 Hearing dates: 28 August 2017 Decision date: 01 September 2017 Jurisdiction: Common Law Before: R A Hulme J Decision: The proceedings are remitted to the District Court of New South Wales. Catchwords: STATUTORY INTERPRETATION – Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29(1)(d)(iii) – whether reports made to Department of Family and Community Services admissible in criminal proceedings in Supreme Court – principle of legality – whether clear and unmistakable language used to abrogate right to a fair trial – clear language in earlier form of s 29(1)(d) – right to a fair trial according to law – reference had to Second Reading Speech – proceedings in s 29(1)(d) are "child welfare proceedings" – s 29(1)(d)(iii) not a reference to all proceedings in this Court involving children – reports inadmissible in criminal proceedings in this Court

PRACTICE AND PROCEDURE – offences relating to physical abuse of a child – accused seeks to rely on reports made to the Department of Family and Community Services – perceived bar to admissibility in District Court based on Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29 – conditional exemption to present indictment in this Court – reports held to be inadmissible – matter remitted to District Court Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29 Children's (Criminal Proceedings) Act 1987 (NSW) s 15A Coroners Act 2009 (NSW) Criminal Procedure Act 1986 (NSW) s 128(2), Ch 6 Pt 5 Div 2 Family Law Act 1975 (Cth) Interpretation Act 1987 (NSW) s 34 Victims Rights and Support Act 2013 (NSW) Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 AQY & AQZ v Administrative Decisions Tribunal of New South Wales [2013] NSWSC 1028 Deputy Commissioner of Taxation v Clark [2003] NSWCA 91; 57 NSWLR 113 Deputy Commissioner of Taxation v Dick [2007] NSWCA 190; 226 FLR 388 Director General, Dept of Family and Community Services v FEW [2013] NSWSC 1448 Huntlee Pty Ltd v Sweetwater Action Group Inc; Minister for Planning and Infrastructure v Sweetwater Action Group Inc [2011] NSWCA 378 Osborne v R [2014] NSWCCA 17; 238 A Crim R 417 Police v Dunstall [2015] HCA 26; 256 CLR 403 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115 TF v Department of Family & Community Services [2015] NSWSC 694 The Application of the Attorney General for New South Wales dated 4 April 2014 [2014] NSWCCA 251; 246 A Crim R 150 Undershaft (No 1) Ltd v Federal Commissioner of Taxation [2009] FCA 41; 175 FCR 150 Category: Principal judgment Parties: Regina Hayward (a pseudonym) Representation: Counsel: Ms H Roberts (Crown) Mr S Boland (Accused)