CLN 2014

CLN 1 - May 2014

Court of Appeal Decisions

CB v Director of Public Prosecutions (NSW) [2014] NSWCA 134

Catchwords: CRIMINAL LAW - particular offences - property offences - wilful or reckless damage to or destruction of property by fire or explosives (Crimes Act 1900, s 195(1)(b)) - mens rea - where accused applied flame to threads on the cover of a couch in an unoccupied house and the house was destroyed by fire - conviction on charge of recklessly destroying the house by fire - content of the mental element of recklessness - whether the required foresight was of destruction of the house or of damage to or destruction of any property.

RC v Director-General, Department of Family and Community Services [2014] NSWCA 38

Catchwords: FAMILY LAW AND CHILD WELFARE - child welfare under State legislation - children in need of protection - guardianship of children - whether care order should have been made.

State of New South Wales v Konneh [2014] NSWCA 91

Catchwords:  APPEAL - civil - application for leave to appeal - proceedings brought on plaintiff's own behalf and as representative proceedings seeking damages for wrongful arrest, false imprisonment and assault - primary judge dismissed motion to strike out parts of pleading alleging special rule of attribution of knowledge applicable to New South Wales Police Force - allegations that arresting police officers knew or must have known of unreliability of COPS computer system and should therefore have known that arrests not justified - primary judge's decision discretionary and on a matter of practice and procedure - no arguable error in trial judge's exercise of discretion - grant of leave would further delay hearing at first instance - leave to appeal refused.

"V V" v District Court of New South Wales [2013] NSWCA 469

Catchwords: FAMILY LAW AND CHILD WELFARE - Child welfare under State legislation - Proceedings relating to care and protection - Application for allocation of parental responsibility to be determined by Children's Court - Appeal to District Court - Appeal dismissed and order of Children's Court allocating parental responsibility to the Minister confirmed - Application by father for judicial review of decision of District Court on appeal - JUDICIAL REVIEW - Application for order in the nature of certiorari in respect of District Court decision on appeal - Whether jurisdictional error - Whether error of law on the face of the record - Whether court correctly construed and applied various provisions of the Children and Young Persons (Care and Protection) Act 1998.

HL v Regina; YG v Regina [2014] NSWCCA 43

Catchwords: CRIMINAL LAW - sentence appeal - demand money by force while in company with intent to steal - Chinese student forced to pay money to former boyfriend - parity principle - recording of conviction only difference between sentences - parity principle not offended.

District Court Decisions

R v BW [2014] NSWDC 45

Catchwords: CRIMINAL LAW - Sentence - Assault with intent to rob whilst armed with an offensive weapon and causing wounding - Young offender - Offender exposed to serious child protection violations - Intimidation of victim - Totality - Offender of probation and parole at time of commission of offence.

Papers

"Review of the NSW Child Protection System: Are things improving?" 
A Special Report to Parliament under s.31 of the Ombudsman Act 1974, April 2014, NSW Ombudsman.

"Youth justice in Australia 2012-2013" April 2014, Australian Institute of Health and Welfare.

"Emerging Developments in Juvenile Justice"
Paper by Judge Peter Johnstone delivered at the 5th Annual Juvenile Justice Summit in Melbourne on Thursday 25 March 2014.

CLN 2 - September 2014

Supreme Court Decisions

Adoption of SRB, CJB and RDB [2014] NSWSC 138

FAMILY LAW - child welfare under state legislation - adoption - whether making of adoption orders clearly preferable to any other legal action which can be taken in respect of the care of the children - held, the making of adoption orders clearly preferable to any other action which can be taken with respect to the care of the children.

Director General, Dept of Family and Community Services v FEW [2013] NSWSC 1448

PROCEDURE - subpoena - objection to production - statutory privilege under s 29 Children and Young Persons (Care and Protection) Act - definition of "report" - whether documents should be produced.

Re Baby S [2014] NSWSC 871

ADMINISTRATIVE LAW - whether seriously arguable that certiorari lies to quash interim care order of Children's Court - whether reasons part of record
FAMILY LAW AND CHILD WELFARE - Parens patriae jurisdiction - whether exceptional circumstances warranting intervention - Children's Court order granting interim parental responsibility to the Minister stayed - earlier order reflected need for baby and mother to bond - no rational ground to rescind that order.

Colquhoun v Children's Court [2013] NSWSC 65

PROCEDURE - courts and judges generally - bias - apprehended bias - application to remove magistrate from hearing proceedings in the Children's Court.

R v SKR v DK [2014] NSWSC 816

CRIMINAL LAW - bail - unacceptable risk of serious offending - whether able to be sufficiently mitigated by conditions - where applicants vulnerable children.

TS v Constable Courtney James [2014] NSWSC 984

APPEAL - whether magistrate erred in admitting evidence of intercepted telephone calls - whether magistrate found incorrectly that the Evidence Act 1995 (NSW) did not apply.

EVIDENCE - Evidence Act 1995 (NSW) applies to applications for a forensic procedure - Evidence Act 1995 (NSW) must be read together with Crimes (Forensic Procedure) Act 2000 (NSW) along with any other applicable Act - laws of evidence as they apply to applications for forensic procedures are affected by matters of which the magistrate is required to be satisfied of - meaning of reasonable grounds for suspicion or belief.

Court of Appeal Decisions

Re Felicity; FM v Secretary, Department of Family and Community Services (No 3) [2014] NSWCA 226

ADMINISTRATIVE LAW - judicial review - appeal from Children's Court to the District Court - no appeal against judgment on statutory appeal to the District Court - whether error of law on the face of the record or jurisdictional error established.

ADMINISTRATIVE LAW - procedural fairness - apprehended bias - allegation of failure by judge to consider applicant's submissions - direction by judge that litigant in person would be assisted by opposing counsel.

ESTOPPEL - res judicata - issue estoppel - findings made about child when determining care order - application to rescind or vary care order - whether earlier findings can be re-examined - whether issue estoppel can arise when there is express jurisdiction to address changed circumstances - Children and Young (Care and Protection) Act 1998 (NSW), s 90.

FAMILY LAW AND CHILD WELFARE - rescission and variation of care orders - care order allocated responsibility for contacting child to Department - order expired when child reached a specific age - application by Department to extend period of responsibility - whether Director-General of department had standing to seek variation - leave to apply for rescission or variation granted where there has been a "significant change in any relevant circumstances" - whether circumstances establish a significant change - whether circumstances limited to those that were the basis for initial care order - Children and Young (Care and Protection) Act 1998 (NSW), s 90.

JUDGMENTS - application to review decision of Children's Court after merit appeal to District Court - judgment of lower court superseded by judgment of appeal court - Wishart v Fraser [1941] HCA 8; 64 CLR 470 applied.

Papers

'A Study of the Children's Court of New South Wales: Part of a National Assessment of Australia's Children's Courts', 2014, Elizabeth Fernandez, Jane Bolitho, Patricia Hansen, Myvanwy Hudson and Sacha Kendall.

'Preliminary concerns around the decision-making of out-of-home-care children who offend', Paper  by Professor Kenneth Nunn delivered to Children's Court Magistrates on 1 November 2013.

CLN 3 - December 2014

Supreme Court Decisions

R v Sumpton [2014] NSWSC 1432

 CRIMINAL LAW - admissions - admissions influenced by oppressive conduct - unlawful detention - requirement to take suspect before authorised officer "as soon as is reasonably practicable" - improper questioning in earlier interview - improper pressure to change version of events - failure to comply with LEPRA - whether unlawful conduct is also relevant to "oppressive conduct" under s 84 - meaning of oppressive conduct - delay in taking accused before an authorised officer.

Court of Criminal Appeal Decisions

The Application of the Attorney-General for New South Wales dated 4 April 2014 [2014] NSWCCA 251

CRIMINAL LAW - procedure - submission by Attorney General to Court of Criminal Appeal of questions of law after accused acquitted of murder of child - trial judge made order for production by Department of Family and Community Services of reports concerning deceased child - whether Court precluded from making order by s 29 of Children and Young Persons (Care and Protection) Act 1998.

STATUTORY INTERPRETATION - principle of legality - whether legislature intended to abrogate accused's right to fair trial by preventing the Court from making orders for production of reports by third parties - whether Department of Family and Community Services a "person" - Children and Young Persons (Care and Protection) Act 1998 s 29.

CONSTITUTIONAL LAW - limits on legislative power of Parliament to regulate criminal trials by enacting laws relating to evidence and procedure - whether statutory prohibition on court compelling production of reports concerning children would be repugnant to or incompatible with institutional integrity of Supreme Court - legislation not invalid under principles in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

Family Court Decisions

Benoud & Shea and Anor [2013] FamCA 438

FAMILY LAW - CHILDREN - Minister for Community Services to have sole parental responsibility for the children - The children to live as directed by the Director-General of the Department of Family and Community Services.

Children's Court Decisions

DFaCS and the Youngest M Children [2014] NSWChC 4

CHILDREN - Care and Protection - application for leave to apply under s 90 of the Care Act for rescission of final Care orders - whether there has been a significant change in any relevant circumstances since the final Care orders were made - if so, whether leave should be granted having taken into account the matters specified in s 90(2A) - whether there is an arguable case.

Department of Family and Community Services (NSW) and the Bell-Collins Children [2014] NSWChC 5

CHILDREN - Care and Protection - realistic possibility of restoration - permanent placement in out-of-home care - contact - permanency planning - allocation of parental responsibility.

Community Services (NSW) and the Knoll Children [2014] NSWChC 6

CHILDREN - Care and Protection - application under s 90 of the Care Act for variation of final Care orders - whether previous orders should be varied so as to make specific orders for contact with the paternal grandmother and aunt under s 86.

Re Mary [2014] NSWChC 7

CHILDREN - Care and Protection - Interim orders - powers to amend - whether s 90 application required.

Police v RD and RC, 25 June, 18 July 

EVIDENCE - admissions obtained by use of listening device - young people not yet charged - whether improper or unfair.

SURVEILLANCE DEVICES - compliance with warrant.

DETENTION CENTRES - duties of Juvenile Justice authorities.

Papers

'The Grey Matter Between Right and Wrong: Neurobiology and Young Offending', Paper delivered by Judge Peter Johnstone, President of the Children's Court of New South Wales, at the Children's Legal Service Conference on 11 October 2014.

'Sentencing Serious Offenders in the Children's Court of New South Wales', Paper by Children's Magistrate Joan Baptie, delivered to Children's Court Magistrates on 2 February 2011.

'Disadvantage, disempowerment and Indigenous Over-representation in Prison' , Paper by Don Weatherburn delivered to Children's Court Magistrates on 17 October 2014.

'Child Protection Legislative Reforms', Paper for Local Court Magistrates by Judge Peter Johnstone, President of the Children's Court of New South Wales, 27 October 2014.

'Planning for Contact Changes', Paper by Roderick Best, Director, Community Services Legal Services, presented at the joint training of care lawyers on 2 October 2014.