CLN 2013

CLN 1 - October 2013

Supreme Court Decisions

RH v Director of Public Prosecutions [2013] NSWSC 520

Catchwords: CRIMINAL LAW - Appeal from Magistrate - offender aged 12 - aggravated break and enter - issue on appeal whether prosecution rebutted presumption of doli incapax - admissions by offender - sufficient evidence to rebut presumption.

Hill as Trustee for the Ashmore Superannuation Benefit Fund v Halo Architectural Design Services Pty Ltd [2013] NSWSC 878 

Catchwords: PROCEDURE - duty to opponent - communications with the Court - Bar Rule 53 - Solicitors Rule 23.

Re June [2013] NSWSC 969

Catchwords: CHILD WELFARE - care proceedings - application by foster carers challenging decision of the Children's Court - whether magistrate erred in failing to admit relevant evidence - where unadmitted evidence raised significant issues - need to weigh advantages of admitting probative evidence against disadvantages of admitting improperly obtained evidence - whether magistrate failed to comply with s 9(2)(c) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - whether magistrate failed to properly apply s 79(3) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - where indication that magistrate regarded time as a dispositive consideration in decisions to admit evidence.

CHILD WELFARE - care proceedings - where an Act confers opportunity to be heard on matters of significant impact - whether foster carers were entitled to that opportunity - what constitutes an opportunity to be heard - Children and Young Persons (Care and Protection) Act 1998 (NSW) s 87.

R v AM [2012] NSWSC 1635

Catchwords: CRIMINAL LAW - sentence - affray - plea of guilty - parity - offender may only be sentenced for conduct giving rise to affray not conduct resulting in other offence - objective gravity of offence assessed as being particularly serious - juvenile offender.

Court of Criminal Appeal

AH v R [2013] NSWCCA 32

Catchwords: CRIMINAL LAW - manslaughter - extended joint criminal enterprise - agreed facts - where agreement did not extend to an agreement as to the nature of the applicant's participation - whether sentencing judge misconstrued the basis of the applicant's plea - whether sentencing judge confused joint criminal enterprise with extended joint criminal enterprise - whether sentencing judge erred in assessment of objective gravity of the offending - whether sentencing judge gave too much weight to general deterrence in light of applicant's youth - whether there was disparity in the sentence imposed on the applicant when compared with sentences imposed on co-offenders - whether sentence manifestly excessive.

BT v R [2012] NSWCCA 276

Catchwords: CRIMINAL LAW - non-parole period - offender serving prior sentence of imprisonment when second sentence of imprisonment imposed - second sentence fully accumulated on first sentence - special circumstances found and statutory ratio of balance of term to non-parole period departed from - ratio of balance of term to overall non-parole period reduced by accumulation of sentences - whether error in not adjusting effective non-parole period - Crimes (Sentencing Procedure) Act 1999 (NSW), s 44.

PD v R [2012] NSWCCA 242

Catchwords: CRIME - appeal - aggregate sentence - steal car - aggravated break and enter - reckless wounding of police officer - juvenile offender - committed one serious children's indictable offence and three other offences - whether erroneous for all four offences to be dealt with "according to law" - whether sentencing judge failed to consider statutory principles relevant to sentencing juveniles - whether sentence manifestly excessive - no prior convictions - intellectual impairment.

District Court Decisions

DFaCS re Poppy [2012] NSWDC 281

Catchwords: Care and Protection - Appeal from Children's Court - s 90 Application - restoration of child to father.

AM v Department of Community Services (DOCS); ex parte Nationwide News Pty Ltd [2008] NSWDC 16

Catchwords: OPEN JUSTICE - Child Care Appeal - application to allow newspaper reporters access to the proceedings - exercise of discretion under s 104C of the Child Care Act where the newspaper had earlier published an article likely to lead to the identification of the children including a photograph of the mother and children, with pixelated faces - the safety, welfare and well-being of the young persons must be the paramount consideration, displacing the common law principle of open justice - court not satisfied that further similar publications were not likely to re-occur - court therefore closed to the media.

Children's Court Decisions

DFaCS (NSW) re Oscar [2013] NSWChC 1

Catchwords: CHILDREN - Care and Protection - parental responsibility - permanency planning - realistic possibility of restoration - contact.

DFaCS (NSW) and Abbey [2013] NSWChC 3

Catchwords: CHILDREN - Care and Protection - parental responsibility - permanency planning - realistic possibility of restoration - contact.

Papers

"Files of Documents Sent to the Children's Court Clinic" 
 By Mark Allerton, Director, Children's Court Clinic. 

"Communication with the Court"     
Analysis of Hill as Trustee for the Ashmore Superannuation Benefit Fund v Halo Architectural Design Services Pty Ltd [2013] NSWSC 878 by Robert J McLachlan, solicitor.

CLN 2 - December 2013

Supreme Court Decisions

Re June (no 2) [2013] NSWSC 1111

Catchwords: CHILD WELFARE - care proceedings - application by foster carers challenging decision of the Children's Court - whether magistrate erred in rejecting evidence - need to weigh advantages of admitting probative evidence against disadvantages of admitting improperly obtained evidence - whether magistrate failed to apply s 79(3) of the Children and Young Persons (Care and Protection) Act 1998 (NSW) - whether magistrate took into account, and acted on, irrelevant considerations.

CHILD WELFARE - care proceedings - where statutory opportunity to be heard on matters of significant impact - whether foster carers were entitled to that opportunity - what constitutes an opportunity to be heard - Children and Young Persons (Care and Protection) Act 1998 (NSW) s 87.

R v S M [2013] NSWSC 1542

Catchwords: CRIMINAL LAW - application for bail - consideration of criteria within s 32 of the Bail Act 1978.

R v F E [2013] NSWSC 1692

Catchwords: EVIDENCE - s 138 and s 139 Evidence Act 1995 - improperly obtained evidence - failure to caution the accused - interview conducted notwithstanding initial refusal to answer questions - s 90 Evidence Act 1995 - unfair deprivation of right to silence - advantage taken of vulnerable person - 15-year-old girl.

CRIMINAL LAW - right to silence - requirement for caution - provisions relating to juveniles.

Court of Appeal Decisions

Re M (no 5) - BM v Director-General, Department of Family and Community Services & Ors [2013] NSWCA 253

Catchwords: CHILDREN - children taken into care - mother seeks judicial review of decision of the District Court in substance affirming decision of the Children's Court - whether District Court decision disclosed error of law - whether Director-General made the relevant Care Plans as far as possible with the agreement of the mother as required by s 78(3) of the Children and Young Persons (Care and Protection) Act 1998.

District Court Decisions

TR v The Director General, Department of Family and Community Services [2013] NSWDC 236

Catchwords: CHILD CARE APPEAL - children, infants or minors - appeal from refusal to grant leave - rescission and variation of care orders - significant change in relevant circumstances - drug use by parents - mental health of parents - domestic violence - parenting skills - injuries to child.

Papers

"Bail and remand for young people in Australia: A national research project"

By Kelly Richards and Lauren Renshaw, Canberra: Australian Institute of Criminology, Research and Public Policy Series 125, November 2013.

"The long-term effects of child sexual abuse"

By Judy Cashmore and Rita Shackel, Australian Institute of Family Studies, CFCA Paper No. 11, 2013.