The Application of the Attorney General for New South Wales dated 4 April 2014  NSWCCA 251 (read decision on NSW Caselaw)
Adrian N. Williams, Barrister-at-law, 16th Floor Wardell Chambers
An extract from a seminar dated 18 February 2015
This paper will discuss the operation of s. 29 of the Children and Young Persons (Care and Protection) Act 1998 ("Care Act") following the decision of the Court of Criminal Appeal given on 6 November 2014.
In this case a man was charged with the murder of a child. He was to be tried by a judge alone and was well represented by experienced counsel. The child in question, and the mother of the child in question, both had a history of involvement with the Department of Family and Community Services. The man had issued a subpoena to the Department seeking production of certain records relating to the child, the dead child and the child's mother. There was and could be no issue as to the legitimate forensic purpose of those records. Redactions were prepared and the documents were produced to the Court. The redactions were made on the basis that to the extent the documents were reports or identified a reporter:
- s. 29(1)(d) prevented the admissibility of reports, and therefore the ability to compel production of the documents given the operation of r. 1.9 of the Uniform Civil Procedure Rules ("UCPR")
- s. 29(1)(e) prevented the compulsory production of reports to the same effect
- s. 29(1)(f) did not apply because the question was not one of disclosure of information but rather of response to a subpoena by way of production of documents – a view was formed that it was premature to engage s. 29(1)(f).
The documents were fairly heavily redacted. A certificate was prepared under s. 29(1A) and relied upon to prove that the documents that had been redacted were reports. The matter was argued before the judge who was to be the trial judge.
The trial judge formed a view that the section was to be read:
- so that s. 29(1)(d) had no application in the context of the particular matter because the proceedings fell within the exception in s. 29(1)(d)(iii) in that they were proceedings in the Supreme Court in relation to a child or young person
- s. 29(1)(e) had to be read in light of the purpose of the section and the principles of legality, which is to protect the identity of persons making reports under the Act, and that therefore the section would need to be read in a way that restricted the protection from compulsory production to material that identified a reporter.
The trial proceeded with the accused's representatives having access to a far more narrowly redacted set of documents and the man was acquitted. So far as the trial judge was concerned the matter turned on questions of what was required for a fair trial, and what is required for the legislature to interfere with an important right going to a fair trial. There is no question that the ability of an accused person to compel the attendance of witnesses and the production of documents goes to the heart of the ability to have a fair trial.
The history and central importance of the ability of an accused person to secure compulsory process is described and emphasised in the decision of Brennan J (as he then was) in the matter of Alister v The Queen (1984) 154 CLR 45:
"The right of an accused person to compulsory process as of course to secure witnesses has been acknowledged for nearly three centuries. It is so basic and important an aspect of our criminal procedure that a trial in which the right is denied cannot be, in my opinion, a trial according to law. There is no distinction to be drawn in this respect between a subpoena ad testificandum and a subpoena duces tecum." (at )
The section is entitled "Protection of persons who make reports or provide certain information". On its face it does that, but clearly sets out to do more:
- It protects the reporter from liability for professional disciplinary liability for making the report and from liability from suits for defamation or conspiracy or malicious prosecution.
- It makes inadmissible "reports" except in defined proceedings.
- It prevents a person from being compelled from producing a report in proceedings or from giving evidence of its contents.
- It prevents the disclosure of the identity of a person making a report, permits the granting of leave for that disclosure to occur, and describes the procedure to be adopted in making such a decision.
- It provides a means of proving by certificate that a document in question is a report of the relevant kind.
Procedural features of the matter and the decision
The matter proceeded by way of submission of questions for determination by the Court of Criminal Appeal pursuant to s. 108 of the Crimes (Appeal and Review) Act 2001:
- This permitted the Attorney General to submit questions for determination of the Court.
- The section is able to be used when the accused has been acquitted.
- The acquitted person is not a party but is entitled to be heard and represented at State expense and no answers to the question can impact on their acquittal.
- The hearing is determined in camera and the identity of the acquitted person is to remain secret, and report of it is punishable as contempt of the Court.
Questions were crafted which attempted to get to the very heart of the matter, namely whether s. 29 should be read to be protective only of material going to the identity of reporters rather than the content of reports. In short the answer was that the section should be read to be protective only of identity of reporters and not of reports themselves.
Aspects of the result
There is no reference to the underlying decision: that is in part a product of the nature of the proceedings being under s. 108. The questions put in part required answers as to whether a particular judge's interpretation was correct:
- Missing is the actual detail of the underlying decision.
- Nowhere in the decision of the Court of Criminal Appeal are the precise words the original judge read into the section.
- The understanding of what those words are must be taken only from the first question submitted for determination.
- It was argued for the acquitted person that s. 29(1)(e) had no operation because the Department of Family and Community Services (the recipient of the subpoena), was not a person at law. That argument was dealt with briefly at paragraph :
- Departments do not have separate legal personality but are rather "aspects or manifestations of the Crown in the right of the State of NSW".
- The definition of person at s. 21 of the Interpretation Act 1987 (NSW) is applicable to the use of the word person in s. 29 of the Care Act and relevantly includes "a body corporate or politic".
- The subpoena in this case was addressed to a manifestation of the body politic.
There was throughout the submissions for the acquitted person this suggestion of arbitrariness on the part of the Department in not voluntarily producing the material given the importance of the context. The suggestion appears to be that the choice not to produce was a free one made by the Department absent any other consideration. That approach at least to some extent appears to have been accepted by the Court – see paragraph  where it appears to be accepted that the Department might voluntarily produce any reports. There is a certain lack of reality in this:
- The terms of s. 29 are protective. They are protective of the professional lives, liability and privacy of those who make reports as to the well-being of children. In the ordinary course it would be expected that the Department would not make its own decision, absent compulsion or operation of law to disclose the contents of reports or the identity of reporters.
- Is it the case now that while the Department cannot be compelled to produce material that would identify a reporter they could choose to do so?
- No account is taken of the fact that s. 254 of the Care Act makes it an offence to disclose information obtained in connection with the administration of the Act. It is an offence carrying a term of imprisonment.
It was argued at first instance that the documents were also not compellable because of the operation of UCPR 1.9 to prevent production of documents that were not admissible. This was rejected, the question being dealt with on the basis that the proceedings were before the Supreme Court and in connection with a child s. 29(1)(d)(iii) applies. Should the question ever again turn on s. 29(1)(d) alone, and not on the now applicable narrow interpretation of s. 29(1)(e) this may create some odd dark corners. Section 29(1)(d(iii)) only applies to the Supreme Court, not to the District Court – so no similar argument could be made with respect to say sexual or violent offences against a child, merely because of what court the proceedings were in.
Section 29(1)(d)(iii) only applies where the proceedings are "in relation to a child or young person" – there may be a very good purpose in seeking such documents but in proceedings that could not be said to be "in relation to a child or young person" though it is accepted that is a very wide category.
As a practical matter, it is unlikely that in circumstances where the Court has interpreted s. 29(1)(e) as they have, that another court will permit the combined operation of s. 29(1)(d) and UCPR 1.9 to have a combined operation that defeats the ability to compel production of reports.
The constitutional point
It was submitted for the accused in the context of the appeal that if the construction contended for by the Attorney was correct, then it was unconstitutional in that it offended the principle in Kable v Director of Public Prosecutions  HCA 24; 189 CLR 51 ("Kable"), in that it was said that the section permitted the Department an unreviewable whim as to whether to produce documents or not. Section 29(1A) in particular was characterised in argument as permitting arbitrary executive action that interfered with the institutional integrity of the Court.
The question did not actually need to be determined given that the construction pressed for by the Attorney was not accepted but it was made clear by the Court that even if the section operated as contended for by the Attorney it was not done for base reasons, without consideration or in a way that would be seen as offending Kable principles.
Use of section 29(1A)
The use of this section is not expressly addressed in the decision. A certificate was relied upon. The accused attempted to portray the availability of s. 29(1A) as suggestive of a position where the Department could choose whether or not to produce material on an arbitrary basis and support that choice with a certificate proving that the documents are reports.
That is contrary to the plain reading of s. 29(1A) – which is merely facilitative of a means of proving one question. It does not permit conclusive, unreviewable certificates. It permits the question of whether a particular document is a report to be proven in a particular way. On its own terms, the certificate appears to be readily rebuttable – in effect by any other evidence to the contrary.
How does one now deal with a subpoena to the Department of Family and Community Services?
- In many ways much as one always did:
- What are the proceedings?
- What stage are they at?
- Who has asked the subpoena to issue?
- Has the Department client already produced material? If so, on what terms? Has it been redacted? By whom? On what basis?
- Is there a legitimate forensic purpose for the material sought at all?
- How do I inform myself as to the matter so I can rationally discuss questions of whether there is a legitimate forensic purpose?
- Is the subpoena drawn in terms that are patently offensive – so broad as to necessarily be a fishing expedition?
- How do I appear in a way that is helpful to the Court, assertive of the rights of the Department, and the important interest protected by s. 29 and least calculated to interfere with or delay what might be serious criminal proceedings, potentially already well underway?
Redaction or non-production should be undertaken on the basis that it is the identity of the reporters that is protected.
- That in my view includes not just their name or contact details, but also
- Their professional description
- Whether they are a professional reporter or not
- Contents of the report that necessarily identifies them
- Material in a format that could only have come from one source (e.g. obviously police documents)
- An approach similar to that taken in s. 130 public interest immunity cases – so material identifying or permitting the identification of a person as a report – the "shrewd idea conveyed as to the identity" spoken of in the cases (AG v Stuart (1994) 34 NSWLR 667)
Considerations for reform
It would be nice to have legislation that was interpreted in a way that corresponded with its obvious reading. If it is really desirable that reports themselves be protected from compulsory production then legislation should be prepared that expressly says so, and which expressly states that to be the case notwithstanding the rights of an accused in a criminal trial. Perhaps a single provision dealing with disclosure of identity, be it by documentary or oral evidence, or compulsory production or otherwise should be developed. It could be comparable in some ways to s. 130. The focus could be on protection of reporters, and instead of focusing on the nature of the jurisdiction being exercised (as in 1(d)) the focus could be on:
- The stage and nature of proceedings
- The identity of the party requesting the disclosure or production
- The importance of the material in question in the context of the proceedings.