Currency

Update 8, June 2018

One article has been added to Care and protection matters — background material, by his Honour Judge Johnstone:

  • Expert clinical evidence in care proceedings at [1-0200]

The Care and protection matters — important cases has been updated from [4-0325]:

  • DFaCS and the Eastway Children [2017] NSWCh 3 (at [4-0325]) where Family Law Court was held to be the preferable forum in a private dispute not requiring involvement of the Care Act, the Children’s Court or the Department.

  • GO v S, DFaCS [2017] NSWDC 198 (at [4-0330]) where the appellant was the great-grandmother of a child subject to care proceedings and carer of mother, leave was granted to adduce evidence as to suitability as an alternative carer of child.

  • R v Hayward [2017] NSWSC 1170 (at [4-0335]) held that a s 29(1) report is not admissible in criminal proceedings in the Supreme Court.

  • DFaCS and the Slade Children [2017] NSWChC 4 (at [4-0340]) held that the court does not have jurisdiction to hear a s 90 application where children not present in NSW or who are subject to a report.

  • Re Jeremy (a pseudonym); DM v S, DFaCS [2017] NSWCA 220 (at [4-0345]) where it was held the judge erred in law failing to apply provisions of Act and the appellant was entitled to have court properly investigate the care situation.

Three articles have been added to the Criminal matters — background material, two by his Honour Judge Johnstone and one by Helen Fatouros, Executive Director, Criminal Law Services, Vctoria Legal Aid:

  • Early intervention, diversion and rehabilitation from the perspective of the Children’s Court of NSW at [5-0150]

  • Updates in the Children’s Court jurisdiction at [5-0160]

  • Is our youth justice system really broken? at [5-0170]

Criminal matters — practice and procedure has been updated to include the Children (Detention Centres) Act 1987 Pt 4C which applies to parole matters commencing on or after 26 February 2018 at [6-0180]. Transitional provisions have been retained at [6-0200].

Criminal matters — important cases has been updated from [8-0305]:

  • Tikomaimaleya v R [2017] NSWCCA 214 (at [8-0305]) where it was held that the judge did not err by admitting complainant’s pre-recorded interview with police

  • R v SG [2017] NSWCCA 202 (at [8-0310]) where it was held that relevance under the Evidence Act is to be given wide interpretation and the trial judge had erred in not assessing probative value of evidence under s 137

  • Director of Public Prosecutions (NSW) v Saunders [2017] NSWSC 760 (at [8-0315]) held that where an order issued that person must attend a psychiatrist/psychologist, the magistrate must name a particular place or person

  • Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 (at [8-0320]) an application for leave to appeal against refusal to grant permanent injunction restraining disclosure that child was in care was refused

  • NU v NSW Secretary of Family and Community Services [2017] NSWCA 221 (at [8-0325]) where it was held that inability to make positive finding of abuse not ultimate determinative of unacceptable risk of harm

  • Director of Public Prosecutions (NSW) v GW [2018] NSWSC 50 (at [8-0330]) arrest for breach of bail without consideration of alternatives is not necessarily improper and the evidence obtained not necessarily in consequence of impropriety

  • Ohanian v R [2017] NSWCCA 268 (at [8-0645]) held that effects of childhood deprivation do not diminish and re-exercise of sentencing discretion warranted due to error

  • DJ v R [2017] NSWCCA 319 (at [8-0650]) the applicant and Crown requested the District Court to pass sentence for related offences on a certificate under s 166 Criminal Procedure Act 1986

A new chapter has been inserted — Youth Koori Court at [11-0000]ff.

Update 7, August 2017

Two articles have been added to Care and protection matters — background material, both by his Honour Judge Johnstone:

  • Cross-over kids: the drift of children from the child protection system into the criminal justice system at [1-0180]

  • The Children’s Court: driving a paradigm shift at [1-0190]

The Care and protection matters — practices notes chapter has been updated and over 25 cases have been incorporated into the:

  • Care and protection matters — important cases from [4-0265]

  • Criminal matters — important cases at [8-0241] and from [8-0265] for decisions concerning young offenders and from [8-0615] for decisions regarding sentencing.

Update 6, November 2016

Three articles have been added to Care and protection matters — background material, all by his Honour Judge Johnstone:

  • Care appeals from the Children’s Court at [1-0150]

  • Children’s participation: a look towards the future at [1-0160]

  • Children’s Court update 2016 at [1-0170].

Two new chapters have been inserted — Apprehended violence orders at [9-0100]ff and Compulsory schooling orders at [10-0100]ff.

Update 6 also includes links and catchwords to the following:

Care and protection matters — important cases

  • Secretary, Department of Family and Community Services; re “Lee” [2015] NSWSC 1276 (at [4-0255]) where the court retained supervision of an almost 18-year-old person with challenging needs who was not capable of managing her own affairs. The court was not willing to discharge court orders upon the child attaining 18 years of age until appropriate replacement orders were put in place.

  • Police v DMO [2015] NSWChC 4 (at [4-0260]) where the admission of a young person to a mental health facility pursuant to an order under s 33(1)(b) of the Mental Health (Forensic Provisions) Act 1990 did not operate to preclude the relisting of charges with regard to three offences.

Criminal matters — remade regulations

  • Children (Criminal Proceedings) Regulation 2016 at [7-0110]

  • Young Offenders Regulation 2016 at [7-0550].

Criminal matters — important cases

Decisions concerning young offenders

  • The Queen v GW (2016) 90 ALJR 407 (at [8-0245]) where the High Court held the statutory presumption of competence to give unsworn or sworn evidence is only displaced where the court is satisfied on the balance of probabilities (s 142 of the Evidence Act) of the contrary. The Evidence Act does not give primacy to sworn evidence; it is neutral in its treatment of the weight that may be accorded to evidence whether it is sworn or unsworn.

  • JW v District Court of NSW [2016] NSWCA 22 (at [8-0250]) where a single judge of the Court of Appeal held the Court of Appeal has jurisdiction to make interlocutory orders to set aside a District Court judge’s order refusing to grant a stay as procedural errors attended the committal process. The Court of Appeal does not have jurisdiction to set aside an order of a Children’s Court’s magistrate committing the applicant for trial for an offence as the Children’s Court is not a “specified tribunal” pursuant to s 48(1) Supreme Court Act 1970.

  • R v NK [2016] NSWSC 498 (at [8-0255]) where the court held that, in the case of a 16-year-old school student charged with a terrorism offence, there must be exceptional circumstances to justify the granting of bail. The age of the applicant and vulnerability to adult persuasion or influence should be considered by the court and strict bail conditions set addressing bail concerns.

  • JB v R (No 2) [2016] NSWCCA 67 (at [8-0260]) where the applicant was acquitted of murder committed when he was a child after an unsuccessful appeal to the Court of Criminal Appeal and special leave to appeal to the High Court was refused. The applicant sought an inquiry into his conviction under s 78 of the Crimes (Appeal and Review) Act 2001. Detailed analysis of evidence likely to be called at retrial was found to be unlikely to establish guilt.

Decisions concerning sentencing

  • RP v R (2015) 90 NSWLR 234 (at [8-0595]) where the Court of Criminal Appeal held in dismissing a sentence appeal, the sentences imposed were not manifestly excessive and no lesser sentence was warranted. Despite the applicant’s youth and immaturity together with his low intellectual abilities, a s 9 bond was not an appropriate sentence; no lesser sentence than imprisonment was warranted. The applicant’s difficult time in custody did not justify suspension of the sentence.

  • TC v R [2016] NSWCCA 3 (at [8-0600]) where a 55-year-old offender was convicted for an historical indecent assault offence committed when he was still a child at law. The sentencing judge convicted the applicant and imposed a 2-year good behaviour bond. The applicant appealed and sought to have the formal conviction expunged. The court considered whether the sentence was unreasonable or unjust and whether no lesser sentence was warranted in law. Leave to appeal was granted, appeal dismissed and sentence upheld.

  • Kiernan v R [2016] NSWCCA 12 (at [8-0605]) where the applicant sought to appeal the sentence based on whether the offence was properly found to be within the mid-range of objective seriousness; whether applicant’s abusive upbringing was properly taken into account and whether sentence was manifestly excessive. Leave to appeal was granted but appeal dismissed.

  • Ingrey v R [2016] NSWCCA 31 (at [8-0610]) where the applicant, an Aboriginal person, successfully appealed the sentence on the basis that the sentencing judge did not have regard to his subjective case including social disadvantage. The court allowed the appeal, quashed the sentence and re-sentenced the applicant.

Update 5, December 2015

Update 5 of the Children’s Court of NSW Resource Handbook has amended the Handbook to include his Honour Judge Johnstone’s paper “Child protection legislative reforms” at [1-0110] with links to the following forms:

  • Form 1: Application and report initiating care proceedings

  • Form 3: Application for rescission/variation or care order

  • Form 4: Application for contact orders

  • Form 5: Application for parent capacity order

  • Form 6: Application for variation or revocation of parent capacity order

  • Form 41: Contract breach notice

  • Form 42: Notification of breach of prohibition order.

The update also includes links and catchwords to the following cases:

Care and protection matters

  • In Secretary, Department of Family and Community Services (NSW) and the Knoll Children (Costs) [2015] NSWChC 2 (at [4-0245]), an application for costs to be paid to the carers by the paternal grandmother were dismissed but allowed against the Secretary. The Children’s Court cannot make an order for costs in care proceedings unless there are exceptional circumstances that justify it in doing so. “Exceptional circumstances” are not exhaustively defined or limited by earlier decisions.

  • In TF v Department of Family and Community Services (NSW) [2015] NSWSC 694 (at [4-0250]), an order of the Children’s Court was quashed due to jurisdictional error.

Criminal matters

  • In RP v R [2015] NSWCCA 215 (at [8-0240]), the sole issue at trial was that of doli incapax where the applicant was tried by judge alone for sexual offences committed when he was aged between 11 years 6 months and 12 years 3 months. The presumption will be rebutted more easily the older the defendant and the more obviously wrong the act.

  • In Siddiqi v R (Commonwealth) [2015] NSWCCA 169 (at [8-0590]), a 19-year-old offender was sentenced for a drug offence. He had been before the Children’s Court seven years prior, where three offences were found proven but no convictions were recorded. The sentencing judge contravened s 15(1) Children (Criminal Proceedings) Act 1987 by considering the three prior offences and concluding that they did not entitle the offender to much leniency.

Update 4, June 2015

Update 4 of the Children’s Court of NSW Resource Handbook has been amended to include links to the following:

Care and protection matters

  • Practice Note 10: Parent capacity orders at [2-0375].

  • JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 at [4-0235] addressed arguments as to the meaning of some of the concepts in s 90(2) of the Children and Young Persons (Care and Protection) Act 1998, including the meaning of “relevant circumstances” and “arguable case”. Further, the court made comments about the relevance of the United Nations Convention on the Rights of the Child in considering an application for leave under s 90 and about the duties of a judicial officer to an unrepresented litigant.

  • Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 at [4-0240] concerned a challenge to a Children’s Court order placing a child under parental responsibility of the Minister until aged 18 years of age. It was held that the court must assess, at the time the application is before it, whether there is a “realistic possibility of restoration”, that is to say, whether the “possibility of restoration is real or practical [and not] … fanciful, sentimental or idealistic, or based upon ‘unlikely hopes for the future’”: In the matter of Campbell [2011] NSWSC 761 (at [55]). The court also made some important observations in relation to the purpose and scope of s 106A of the Children and Young Persons (Care and Protection Act 1998 and made comments similar to those in JL v Secretary, Department of Family and Community Services (above) about the relevance of the United Nations Convention on the Rights of the Child and about the duties of a judicial officer to an unrepresented litigant.

Criminal matters

  • Practice Note 11: Youth Koori Court at [11-0025]

  • R v GW [2015] NSWDC 52 at [8-0235] concerned the doli incapax presumption that a child between 10 and 14 years is not criminally responsible in a case where a wooden bench was defaced with a graffiti item (a thick marking pen). Although the admission of a bail report could be used as a record of past findings of guilt to negative doli incapax, in this case, the manner in which the material was presented to the court (ie not in a form that complied with s 178 Evidence Act 1995) led to the reluctant conclusion that the evidence should be rejected.

  • R v RM [2015] NSWCCA 4 at [8-0575] concerned seven charges, including aggravated indecent assaults on a child under 10, committed by a respondent who was a juvenile at the time the offences were committed. On appeal, it was contended that the sentencing judge had erred in a number of respects and that the sentences imposed were manifestly inadequate. Although the Court of Criminal Appeal found that the sentence was manifestly inadequate, after taking all circumstances into consideration, it chose to exercise its residual discretion, and declined to intervene to do other than correct the technical errors made by the sentencing judge.

  • Johan v R [2015] NSWCCA 58 at [8-0580] concerned a juvenile with a serious drug habit and an intelligence that was assessed in the mild intellectual disability range. His offences involved the use of dangerous weapons, four armed robbery offences, aggravated break and enter, and most of the offences were committed in the company of another person. The appeal was dismissed on the basis that the sentence imposed was not manifestly excessive.

  • RL v R [2015] NSWCCA 106 at [8-0585] concerned the sentencing of an adult for sexual offences committed as a juvenile and the effect of the delay between the commission of the offences and when the charges were laid. As to whether there was a need for the appeal court to determine the appropriate sentence, it was found that it is not sufficient to ask if an impugned sentence was within range (Kentwell v The Queen (2014) 88 ALJR 947 was applied).

Update 3, December 2014

Update 3 of the Children’s Court of NSW Resource Handbook has been amended to include Judge Johnstone’s paper “The grey matter between right and wrong: neurobiology and young offending” at [5-0140].

The update also includes links and catchwords to the following cases in Criminal matters — important cases at the following paragraph numbers:

  • RH v Director of Public Prosecutions (NSW) [2014] NSWCA 305 at [8-0210] concerning an appeal case where young offenders were involved in an aggravated break and enter at a regional fire station. At issue was whether the Crown had rebutted the presumption of doli incapax. The Supreme Court held that the magistrate erroneously applied an objective instead of a subjective test. The Court of Appeal confirmed that the test is subjective. However, it held that it was not open on the material before the judge to then find beyond reasonable doubt that the presumption had been rebutted.

  • TS v Constable Courtney James [2014] NSWSC 984 at [8-0220] where it was held that the Evidence Act 1995 (NSW), together with s 24 of the Crimes (Forensic Procedures) Act 2000 (NSW), apply to applications for forensic procedures.

  • The Application of the Attorney General for New South Wales dated 4 April 2014 [2014] NSWCCA 251 at [8-0230] concerning an order for the production of FACS reports regarding a deceased child made in criminal proceedings where the accused was indicted for the murder of the child. It was held that s 29 of the Children and Young Persons (Care and Protection) Act 1998 is constitutionally valid and should not be construed so as to preclude the accused in a criminal trial from compelling, by subpoena, production of s 29 reports that are relevant to the issues at the trial.

The Children’s Court Regulation 2014 can also now be found at both [3-0205] for care and protection matters legislation and [7-0305] for criminal matters legislation. The regulations deal with, inter alia, appeals in relation to the decisions of Presidential Children’s Court.

Update 2, June 2014

Update 2 of the Children’s Court of NSW Resource Handbook has been amended to include reference to Professor Nunn — “Preliminary concerns around the decision-making of out-of-home-care children who offend” — in the Care and protection matters — background material.

The update also includes links and catchwords to the following cases in Care and protection matters — important cases and Criminal matters — important cases:

  • There is a need for the court to make a finding that permanency planning has been adequately addressed and approved of before final orders can be made — AQY & AQZ v Administrative Decisions Tribunal of NSW [2013] NSWSC 1028

  • Foster carers were entitled to an opportunity to be heard on matters of significant impact — Re June [2013] NSWSC 969

  • The making of adoption orders was clearly preferable to any other legal action which could be taken in respect of the care of the children — Adoption of SRB, CJB & RDB [2014] NSWSC 138

  • There was no obligation to prove that a police officer formed the view that it was impracticable to give information before exercising power to seize property to prevent a breach of the peace — Poidevin v Semaan [2013] NSWCA 334

  • A doli incapax cannot be rebutted merely by virtue of the commission of the offence itself — RH v Director of Public Prosecutions (NSW) [2013] NSWSC 520

  • Improperly obtained evidence from a vulnerable person excluded under ss 90, 138 and 139 of the Evidence Act 1995 — R v FE [2013] NSWSC 1692

  • Aggregate sentence for multiple offences including a serious home invasion was manifestly excessive given the applicant’s intellectual impairment, youth and absence of prior offending — PD v R [2012] NSWCCA 242

  • Sentencing judge erred in not giving proper attention to the fact that the applicant had a four-week old baby at the time of sentence — HJ v R [2014] NSWCCA 21.

Links to sections of the Bail Act 2013 relevant to the Children’s Court — in particular, ss 28 and 74(3)(d) — may be found in Criminal matters — practice and procedure and Criminal matters — legislation.

Update 1, June 2013

The Children’s Court of NSW Resource Handbook was published 28 June 2013.

The Children’s Court of NSW is a unique court which has specialised practice and procedure with regard to children and young people in its criminal and care and protection jurisdictions. Designed primarily to be of use to new Children’s Court magistrates as part of their induction in the field, the Judicial Commission’s Children’s Court of NSW Resource Handbook contains important material for both criminal and care and protection matters.

Charts and practical information prepared by experienced magistrates can be found in both the “Background material” or “Practice and procedure” chapters for either type of matter, along with useful articles about issues that affect children and their development, including material from the Director of the Children’s Court Clinic.

Links to other sources of information are also available including the Judicial Commission’s Local Court Bench Book, the Sentencing Bench Book, practice notes from lawlink, legislation and cases on JIRS, and the Children’s Law News. Succinct catchwords to jog the memory as to the relevance of each piece of legislation or case have also been added. While the Resource Handbook is primarily intended to assist magistrates, it is anticipated that other judicial officers, lawyers who appear in the Children’s Court and people interested in the work of the Court will find it informative and instructive.