Secretary, Department of Family and Community Services v ZL [2019] NSWCCA 135

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Secretary, Department of Family and Community Services v ZL [2019] NSWCCA 135 Hearing dates: 7 June 2019 Decision date: 26 June 2019 Before: Hoeben CJ at CL at [1]; White JA at [2]; Hamill J at [12] Decision: (1) Grant an extension of time in which to file the application for leave to appeal. (2) Application for leave to appeal granted. (3) Appeal allowed. (4) Quash the order dismissing the notice of motion in the District Court. (5) Set aside the subpoena filed in the District Court directed to the Department of Community Services in proceedings H61638320. (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. Catchwords: 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 – purpose of legislation – legislation prescriptive – where complainant in historical sexual assault case makes allegation to Family and Community Services – where existence of FACS complaint disclosed to accused in criminal proceedings – where no details of date or substance of complaint disclosed – accused issues subpoena – fairness to the accused – where primary Judge protects confidential information by ordering redaction of documents – where orders accord with purpose of legislation – where accused unaware of contents of document – hypotheticals – prohibition on production of "extract" of report – prohibition on evidence of "any of its contents" – subpoena set aside Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 3, 8, 23, 24, 25, 27 and 29 Criminal Appeal Act 1912 (NSW), s 5F(3)(a) Interpretation Act 1987 (NSW), s 33 Cases Cited: Hayward (a pseudonym) v The Queen (2018) 97 NSWLR 852; [2018] NSWCCA 104 Secretary, Department of Family and Community Services v Hayward (a pseudonym) [2018] NSWCA 209 Category: Principal judgment Parties: Secretary, Department of Family and Community Services (Applicant) ZL (Respondent) Representation: Counsel: D Kell SC; B Le Plastrier; E Jones (Applicant) S Corish (Respondent)