CLN 2016

CLN 1 - April 2016

​​High Court of Australia Decisions

The Queen v GW ​[2016] HCA 6

Criminal law – Evidence – Unsworn evidence – Where respondent convicted following trial in Supreme Court of the Australian Capital Territory of commission of act of indecency in presence of daughter, R – Where R six years old when giving evidence – Where R's evidence received unsworn under s 13(3) of Uniform Evidence legislation – Where ex tempore reasons of pre-trial judge suggested reversal of presumption of competence to give sworn evidence – Where respondent agreed to be bound by pre-trial judge's ruling under s 13(3) – Whether pre-trial judge failed to apply s 13 – Whether open to pre-trial judge to be satisfied s 13(3) test met – Whether R's unsworn evidence wrongly admitted.

Criminal law – Evidence – Jury directions – Where audio-visual recording of child witness' unsworn evidence tendered at trial – Where respondent requested trial judge direct jury that evidence unsworn – Whether Uniform Evidence legislation required direction – Whether common law required direction to avoid perceptible risk of miscarriage of justice – Whether adequate directions given.

Words and phrases – "competence", "evidence of a kind that may be unreliable", "evidence of children", "obligation to give truthful evidence", "perceptible risk of a miscarriage of justice", "presumption of competence", "reliability", "sworn evidence", "unsworn evidence".​

​​​​​​Supreme Court of NSW Decisions

Secretary, Department of Family and Community Services; Re "Lee" [2014] NSWSC 417​

FAMILY LAW AND CHILD WELFARE - the (Cth) Family Law Act 1975 and related legislation - children - recovery order - in aid of secure accommodation order - jurisdiction​

Secretary, Department of Family and Community Services; Re "Lee" [2015] NSWSC 1276​

FAMILY LAW AND CHILD WELFARE - exercise of parens patriae jurisdiction – where orders in place for parental responsibility and secure accommodation - continued availability of jurisdiction where child soon to attain 18 years of age but is not capable of managing her affairs - importance of ability to detain and restrain child to ensure proper care - where guardianship order does not include powers to detain and restrain - where guardianship order does not provide adequate safety net as alternative to parental responsibility and secured accommodation orders - unwillingness to discharge Court orders upon child's attaining 18 years of age until satisfied appropriate replacement orders in place.​

Secretary, Department of Family and Community Services; Re "Lee" ​[20​15] NSWSC 2054

FAMILY LAW AND CHILD WELFARE – secure accommodation order – Secretary given advice that justified in circumstances in not routinely restraining/detaining child.​

Secretary, Department of Family and Community Services; Re "Lee" ​[2016] NSWSC 138

FAMILY LAW AND CHILD WELFARE – parens patriae jurisdiction – where responsibility of young person transferred from Minister to Public Guardian on attainment of 18 years of age – where appropriate arrangements in place for future care.​

​​Court of Appeal Decisions

​JW v District Court of New South Wales [2016] NSWCA 22​

JURISDICTION – Court of Appeal – Supreme Court Act 1970 (NSW), s 69 – order sought to set aside order of magistrate in the Children’s Court committing applicant for trial – order sought to set aside judgment or order of the District Court refusing stay of proceedings – whether Court of Appeal has jurisdiction to grant the orders – effect of Supreme Court Act s 17(1) and Third Schedule – whether proceedings fell into category of exclusion provided by cll (a1) and (a2) of Third Schedule – order concerning the District Court proceedings not excluded 
  
JURISDICTION – Court of Appeal – Supreme Court Act 1970 (NSW), s 48 – proceedings under s 69 concerning orders of a specified tribunal – District Court a specified tribunal under s 48(1) – Children’s Court not a specified tribunal under s 48(1) 
  
JURISDICTION – Court of Appeal – single judge sitting alone – jurisdiction of single judge of Court of Appeal to set aside judgment or order of District Court refusing stay of proceedings – Supreme Court Act 1970 (NSW), s 46(2)(b) 
  
PRACTICE AND PROCEDURE – application for stay of District Court proceedings – deficiencies in committal of applicant to trial in District Court – stay granted​

​Court of Criminal Appeal Decisions

​​Kiernan v R [2016] NSWCCA 12​

CRIMINAL LAW – sentence appeal – wounding with intent to cause grievous bodily harm – whether offence was properly found to be within the midrange of objective seriousness – whether applicant’s abusive upbringing properly taken into account – whether sentence manifestly excessive – leave to appeal granted but appeal dismissed.​

RP v R [2015] NSWCCA 215​

CRIMINAL LAW – sexual intercourse with a child under 10 years – aggravated indecent assault – accused was older half-brother of victim - accused aged between 11 and 13 years – doli incapax – whether presumption rebutted – what acts may be considered – whether surrounding circumstances of first offence could be used in assessing if presumption rebutted for later offences – judge alone trial – ground of appeal asserting unreasonable verdict – how Court of Criminal Appeal considers unreasonable verdict ground in a judge alone trial – sentence – whether accused occupied a position of trust - whether manifestly excessive - totality​

TC v R [2016] NSWCCA 3

CRIMINAL LAW – appeals – sentencing – historical indecent assault by young person on 9 year old boy contrary to s 81 of the Crimes Act 1900 (NSW) – further historical indecent assault on 12 year old girl contrary to s 76 of the Crimes Act on a Form 1 – sentencing judge convicted applicant and imposed 2 year good behaviour bond – whether sentencing judge failed to into account the sentencing options under the Child Welfare Act 1939 (NSW) – whether the sentencing judge failed to sentence in accordance with standards at time of the offence – whether sentence unreasonable or plainly unjust – whether the sentencing judge erred by recording conviction – whether no lesser sentence warranted in law​​

​District Court of NSW Decisions

​"A" v The Secretary, Family & Community Services [2015] NSWDC 307​

CHILD CARE APPEAL – rejection of proposed permanency care plan providing for the permanent placement of two children into foster care – evaluation of flawed expert evidence that resulted in maternal grandmother being excluded from consideration for the placement of her two granddaughters into her care – orders for new permanency plan to be prepared to include transition provisions for transfer of placement and care​​

R v GW [2015] NSWDC 52​​

CRIMINAL LAW – doli incapax – rebuttable presumption – previous findings of guilt – recommendations as to legislative change​

​Children's Court of NSW Decisions​

Police v DMO [2015] NSWChC 4

The proceedings in relation to the young person DM [H57623664] are to be relisted before the Children’s Court on a date to be fixed before 8 March 2016​

Re Arie, Nadine & Adele [2015] NSWChC 5

General powers to exclude people from proceedings – provision of copies of documents to non-parties​

​​Papers

​"Admissions by Children", Paper delivered to Children's Court Magistrate's s 16 Conference 2016, Her Honour Judge Dina Yehia, District Court of NSW​

​"Children's Court Update", Paper to Local Court Magistrates, at the Northern and Southern Regional Conferences 2016, His Honour Judge Peter Johnstone, President of the Children's Court of NSW​

"Children's Participation - A Look Towards the Future", Paper to the Child Representation Conference 2016, His Honour Judge Peter Johnstone, President of the Children's Court of NSW