CLN 2024

CLN 2 - December 2024

NSW Court of Appeal

L v Minister for Families, Communities and Disability Services [2024] NSWCA 199

ADMINISTRATIVE LAW — Jurisdictional error — Children and Young Persons (Care and Protection) Act 1998 (NSW) — where care orders made by the Children’s Court removed parental responsibilities from mother — where care orders confirmed on appeal by the District Court — where no appeal lies to the Court of Appeal — where part of applicant’s evidence not considered by judge — no cross-examination or argument addressed to judge on evidence not considered — whether judge displayed apparent bias — whether applicant denied procedural fairness — whether decision was legally unreasonable — nothing in transcript of hearing under review demonstrates reasonable apprehension of bias or procedural fairness — findings of judge were not unreasonable in any sense of the word — summons dismissed.

M v Secretary, Department of Communities and Justice [2024] NSWCA 283

ADMINISTRATIVE LAW — bias rule — actual or apprehended — apprehended bias — where bias alleged by reference to reasons for judgment — sole reliance on reasons inverts proper inquiry — transcript did not disclose bias.

ADMINISTRATIVE LAW — procedural unfairness — where applicant alleged denial of adjournment to obtain evidence — where primary judge informed applicant of relevant procedure — no application for adjournment made by applicant — procedural fairness did not require primary judge to independently adjourn hearing.

NSW Court of Criminal Appeal

Tukuafu v R [2024] NSWCCA 84

SENTENCING – appeal against sentence – whether open to the sentencing judge to find that the male victim suffered “life threatening injuries” – whether permissible to take into account a further offence on a Form 1 document in assessing and determining the objective seriousness of a principal offence – s 15 Children (Criminal Proceedings) Act 1987 (NSW) – admissibility of juvenile criminal record.

Dennis v R [2024] NSWCCA 137

CRIME – Appeals – Appeal against sentence – Application for leave to appeal – Whether the sentencing judge mistook facts in finding aggravating circumstances for a Form 1 offence – Whether the sentencing judge erred in admitting on sentence, and having regard to, the applicant’s criminal history for offences committed as a child.

BAP v R [2024] NSWCCA 206

CRIME – Sentence Appeal – sexual touching and sexual intercourse with a child – plea of guilty at District Court “super call-over” – whether the sentencing judge should have found that the applicant facilitated the administration of justice – where s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW) was not raised before the sentencing judge – failure by the sentencing judge to consider the principles relevant to sentencing youth – complex interplay between youth, mental illness and cognitive impairment – error established – applicant re-sentenced.

Barker v R [2024] NSWCCA 227

CRIME — Appeals — Appeal against sentence — Where sentencing judge took into account applicant’s juvenile criminal record — Where sentencing judge erroneously took into account unproved allegations — Bugmy v The Queen.

Supreme Court of New South Wales

R v KO [2024] NSWSC 679

BAIL – release application – young person – 14 years old – concerning charges – further offence committed whilst on bail – Bail Act 2013 (NSW), s 22C test – relevant offences – attempt to commit substantive offence is not a relevant offence – unacceptable risk test – bail granted with conditions.

RB v R (No 2) [2024] NSWSC 845

BAIL – juvenile applicant– whether bail concerns give rise to an unacceptable risk– risk of failing to appear – risk of serious offences – strong Crown case – protective factors – Bail Casework 22C plan – long criminal history for similar offences – history of non-compliance with bail – breaches of bail occurred at proposed bail address – observations on s 22C of the Bail Act – relevant offence – motor theft offence – relevant young person – meaning of a high degree of confidence – release application refused.

R v Diallo & Ors (No 2) [2024] NSWSC 853

CRIMINAL LAW – evidence – admissions by conduct – lies and consciousness of guilt – statements made by accused near the scene of the murder – no adult, lawyer or support person present – statutory prohibition on admissibility – whether exception to prohibition established – where questions asked in urgent circumstances – accused member of suburban gang – differences leading to violent confrontation – overview of prosecution case – eye witness testimony by other witnesses – taking the contempt charge rather than an affirmation or oath – repeated mantra of “no comment” – circumstantial case – assessment of accused’s vulnerability – palpable fear and confusion – satisfactory explanation of absence of adult – a lot happening – other factors militating against admission of evidence – evidence not admissible.

Re Dakota [2024] NSWSC 1333

CHILD WELFARE – parens patriae jurisdiction – where mother of child in foster care seeking injunction against Minister removing the child from the State of New South Wales – where mother’s application in the Children’s Court for recovery of the child is pending – whether in the best interests of the child.

In the matter of KL [2024] NSWSC 1334

CIVIL LAW – criminal contempt in the face of the court – refusal to answer questions – where contemnor a juvenile – applicability of sentencing legislation – whether “criminal” or “civil” proceedings – Children (Criminal Proceedings) Act held not to apply.

CIVIL LAW – punishment for contempt – assessment of seriousness – relevant considerations – where refusal to answer selective and sustained – motive unclear – possible reflection of underworld policy of non-cooperation – serious example of contempt – youth of contemnor resulting in little weight to retribution or denunciation – general deterrence also of less weight – where contemnor due to give evidence in separated murder trial – personal deterrence of significant weight – principles stated in other cases – consideration of comparable cases – somewhat lame apology – order for detention as a juvenile offender – order suspended on condition that contemnor be of good behaviour.

BW v Secretary, Department of Communities and Justice & Ors [2024] NSWSC 1354

ADMINISTRATIVE LAW – judicial review – Children’s Court Magistrate - bias – apprehended bias – application for disqualification of Magistrate – fair-minded lay observer – error of law on the face of the record – adequacy of reasons.

MA v State of New South Wales [2024] NSWSC 1366

COURTS AND JUDGES – Application for suppression and non-publication orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) – Prohibition on publication already enlivened by s 15A of the Children’s (Criminal Proceedings) Act 1987 (NSW) – necessity – appropriateness of further orders – application refused.

R (Cth) v OK [2024] NSWSC 1411

CRIME – bail – release application – young person – conspiring to engage in an act in preparation for or planning a terrorist act contrary to ss 11.5(1) and 101.6(1) of the Criminal Code (Cth) – show cause – unacceptable risk – extremist ideology – co-conspirators – risk of re-radicalisation – bail concerns – community supports – risk mitigated – bail granted subject to conditions.

R v YA [2024] NSWSC 1445

CRIMINAL LAW – bail – detention application – where court satisfied respondent will be sentenced to full-time imprisonment – section 22B Bail Act – “special or exceptional circumstances” – where offender under 18 at the time of the offences – where kept in juvenile detention centre before bail granted – where offender now an adult – where legislation provides no power or discretion in bail court for offender to be detained in detention centre on remand – possible lacuna in legislation – where sentencing court has power to order offender to be detained in juvenile institution upon sentence – threats from other accused – where sentencing proceedings to occur in the next 6 weeks – prosecution of detention application fairly and properly muted – special or exceptional circumstances established – application refused.

R v TW [2024] NSWSC 1504

BAIL – Aboriginal juvenile – observations on the application of s 22C of the Bail Act 2013 (NSW) – bail granted.

R v BH [2024] NSWSC 1577

BAIL – Applicant 14 year old Aboriginal child – operation of s 22C of the Bail Act 2013 (NSW) – whether high degree of confidence requires certainty that the applicant will not reoffend – application of s 6 of the Children (Criminal Proceedings) Act 1987 (NSW) to the bail proceedings – consideration of unacceptable risk – prosecution failed to establish that bail should be refused – conditional bail granted.

Children's Court of New South Wales

R v Adam [2024] NSWChC 6

CHILDREN — CRIME — Sexual assault — Directions —Trauma informed — Knowledge.

R v Louie [2024] NSWChC 10

CHILDREN — CRIME — Community Treatment Order — Youth Koori Court.

Department of Communities and Justice (DCJ) and Margaret and Richard [2024] NSWChC 7

CHILDREN – Care and protection – Allocation of parental responsibility – Permanency planning – Section 90A – Special circumstances.

Department of Communities and Justice (DCJ) and the Dixon Children [2024] NSWChC 8

CHILDREN — CARE — Unacceptable risk of harm.

Department of Communities and Justice (DCJ) and Phoebe and Katelyn Wilson [2024] NSWChC 9

CHILDREN – Care and protection - Permanency Planning and Case Management.

Department of Communities and Justice (DCJ) and Alice [2024] NSWChC 12

CHILDREN – Care and protection – best interests – safety, welfare and wellbeing – paramountcy principle – permanent placement principles – unacceptable risk.

Department of Communities and Justice (DCJ) and Paul Robertson and Sadie Ford [2024] NSWChC 13

CHILDREN - Care and protection - Case management - delay - model litigant and role of the Independent Legal Representative.

Legislative Amendments

Justice Legislation Amendment (Children) Act 2024 No 81

Sections 2 and 3 amended the Children (Criminal Proceedings) Act 1987 and the Children (Community Service Orders) Act 1987 to clarify the actions that the Children’s Court may take in response to breaches of certain court orders, such as good behaviour bonds.

This legislation has amended the Acts to give the Children’s Court express power to take no action, to vary or revoke conditions, to impose further conditions and to revoke an order in response to breaches of bond, probation orders and community service orders.

It also gave the Children's Court the power to take no action or to revoke an order releasing a person on the condition that the person complies with an outcome plan if the court finds the person breached the outcome plan. The amendments bring the children's breach process in line with the adult model in section 108C (5) of the Crimes (Administration of Sentences) Act 1999. 

CLN 1 - May 2024

NSW Court of Appeal

DN v Secretary, Department of Communities and Justice [2023] NSWCA 321

CHILD WELFARE – Aboriginal children at risk of significant harm – parental responsibility conferred on Minister – children placed in care of non-Aboriginal carers – carers’ temporary visas expired – Minister consented to temporary removal of children to the UK – application by mother for parental responsibility – orders conferring parental responsibility on carers in the UK COURTS and JUDGES – Children’s Court – jurisdiction – child not present nor ordinarily living in New South Wales – parental responsibility conferred on Minister – child living with carers in the UK – order conferring parental responsibility on Minister rescinded – whether Court can make order conferring parental responsibility on carers – whether jurisdiction of inferior court more extensive than Supreme Court’s parens patriae jurisdiction STATUTORY INTERPRETATION – jurisdiction-conferring provisions – not to be read down by implied limitations – application – specialist courts – inferior courts – judicial institutional arrangements – legislative history – comity of nations – conflict of laws rules giving effect to foreign law

(Please note that the law has changed since this decision)

NSW Court of Criminal Appeal

BB v R [2024] NSWCCA 13

CRIME – Appeal against sentence – aggregate sentence - child sex offences – sentencing judge erred in finding that some counts were a “serious children’s indictable offence” within s 3 of the Children (Criminal Proceedings) Act 1987 – sentencing discretion unaffected by error –sentencing judge did not err in failing to take into account the lost opportunity of a different sentencing regime that would have been available had the applicant been prosecuted earlier - sentence not manifestly excessive.

R v IP [2024] NSWCCA 16

CRIME – Suppression and non-publication – protection for publishing or broadcasting the name of accused children and child victims under s 15A Children (Criminal Proceedings) Act 1987 (NSW) – whether publishing or broadcasting the deceased child victim’s name under the exception in s 15E Children (Criminal Proceedings) Act 1987 (NSW) would be likely to lead to the identification of the accused child – not a question of the possibility of identification by those in the community with personal knowledge of the circumstances of the alleged offence – whether the judgment published with the name of the deceased child would likely lead to the identification of the accused

MF v R [2024] NSWCCA 42

CRIME – appeals – appeal against sentence – whether sentencing judge failed to have regard to applicant’s youth in assessing moral culpability and the role of general deterrence – whether the relevance of the applicant’s youth to these factors adequately explained – relationship between moral culpability and objective seriousness

Supreme Court of New South Wales

R v RB [2024] NSWSC 471

BAIL – Aboriginal youth – multiple offences – whether unacceptable risks can be ameliorated by proposed conditions – a number of services actively engaged with by RB – close to age 18 – application for some of his other offences (part heard) to be dealt with under s 31(3) of the Children (Criminal Proceedings) Act 1987 (NSW) – s 22C commenced 3 April 2024 – applicability to the offending – Bail and Crimes Amendment Act 2024 (NSW) – tension with Children (Criminal Proceedings) Act – unfairly discriminatory against a class of children accused of crimes – police letters – expressed in generalities rather than facts – police letters expressing opinions as to whether a person should be released – Director of Public Prosecutions (NSW) v Tony Mawad [2015] NSWCCA 227 at [33]-[34] and [38]-[39] – s 22C does not apply as all alleged offending before s 22C commenced so no further relevant offence committed whilst on bail

R v KS (No 1) [2023] NSWSC 696

SENTENCE — Murder — Tragic loss of life — Second offence of grievous bodily harm with intent to cause grievous bodily harm — Where the offender was a child when offences were committed — Reduced capacity for consequential thinking — immaturity — History of depression — Excessive use of cannabis to self-medicate — Whether attributes personal to the young person operate to reduce the objective seriousness of the offences — Reduction in moral capability — Principles applicable to sentencing children

District Court of New South Wales

Secretary, Department of Communities and Justice v M & J (Pseudonyms) [2024] NSWDC 35

CARE APPEAL – construction of s 90A of the Children And Young Persons (Care and Protection) Act 1998 (NSW) – erroneously made prohibition order by Children’s Court set aside – Children’s Court had no statutory power to make that order after the proceedings had been finalised

Children's Court of New South Wales

Department of Communities and Justice (DCJ) and Paul [2024] NSWChC 1

CHILDREN – Care and Protection – costs – exceptional circumstances.

R v Thomas; R v Tony [2024] NSWChC 2

CHILDREN – Criminal Law – Committal - Charge certificate – Abuse of process - Stay

Department of Communities and Justice (DCJ) and the Yarran Taylor Children [2024] NSWChC 3

CHILD WELFARE — Care proceedings — Care order — Variation of care order — Realistic possibility of restoration — Section 79(10) special circumstances — Permanency planning not adequately addressed — Minute of Care order — Request that the decision is brought to the attention of Executive District Director — Request that the decision is brought to the attention of the Secretary

R v Ronald [2024] NSWChC 4

CHILDREN - Criminal Procedure - Voir dire - Admissibility of ERISP - Interviewing vulnerable people after legal advice

R v Kai [2024] NSWChC 5

CHILDREN – Crime – Assessment of seriousness in stolen car offences – Actions on breach of bonds – Totality – Bugmy factors – Special circumstances

Articles

Legal Aid Article: 'The Child Protection Convention and jurisdiction of the Children's Court' (PDF, 288.3 KB)

By Kerri Phillips and Cassandra Bennett, solicitors in the Appeals and Complex Litigation Unit, Family Law Division, Legal Aid NSW.

Why NSW has a fine problem: COVID kids report

By Dr Julia Quilter, Dr Luke McNamara, Dr Elyse Methven and Grace Bowles.