Hayward v R

The Background to, or context of the charges brought

1. The co-accused DD pleaded guilty in May 2016 in the District Court to 6 charges which included the four charges common with the applicant. He was sentenced to an aggregate sentence of 16 years imprisonment with a non-parole period of 12 years to date from 16 September 2014. After sentence he spoke to investigating police in November 2016 and provided a statement and will give evidence at any proposed trial for the accused. I was informed in the course of the application that he had appealed subsequently against the severity of the sentences imposed, but has withdrawn that appeal. Although, the Crown believes he intends to re-lodge an appeal after he has given evidence in the trial of the applicant. The mother of the child pleaded guilty in the District Court to a number of offences relating to mistreatment of the child and an offence of concealing a serious indictable offence contrary to s.316 Crimes Act 1900, that latter offence relates to her failure to disclose criminal conduct of either the applicant and/or DD. It is important to note that matters that she pleaded guilty to were not common charges brought against the applicant and DD. But as I understand it they had a temporal connection to the matters involving this accused. On 16 December 2015 the child's mother was sentenced to 30 months imprisonment with a non-parole period of 17 months, with a 20% discount for her assistance to authorities in relation to a charge of exposing a child under 7 to danger of serious injury, contrary to s.43 Crimes Act 1900. This offence is concerned with the circumstances of the alleged criminal conduct of this accused and/or the admitted criminal conduct of DD.
2. Annexed to this judgment is the Crown case statement setting out the details of the allegations against the accused. The Crown case against the accused and DD is that their criminal conduct is independent of any allegation of physical harm brought against the mother caused to the child whilst the child was living in the accused's premises. At the centre of the permanent stay application is, as I understand the matter, an allegation, or allegations, that notwithstanding what DD admitted to by his pleas of guilty, it was not the applicant and DD that were jointly responsible. It was either the mother, or DD, or the two of them that caused any relevant harm to the child.
3. There is detailed medical evidence available of various injuries being found on the child when the child was admitted to hospital having been taken there on 26 May 2014 by a Family and Community Services Officer (EP) who was the 'case officer' for the mother. She had a number of other children in 'care'. Apart from the details of injuries suffered in the Crown case statement, I have read the final report of the medical expert who examined the child and who purports to age the various injuries observed. That final report dated 28 June 2014. Those injuries are summarised at paragraphs [22]-[28] of the Crown case statement. The mother told lies to investigators and medical staff about the source of the injuries on a number of occasions, claiming that the child had "fallen down stairs". She did not give a version implicating the accused until 16 September 2014 after she was charged. The child was placed in foster care on 30 May 2014. He disclosed to his carer that DD had hit him with a baseball bat and that the accused had put him in a cold shower, made him sit on the seat in that shower and had been made to stand on a refrigerator which he had fallen off.
4. Another person, EE (an adult male), who visited the house of the accused on 24 May 2014, claimed to be an eyewitness to conduct towards the child relevant to counts 4 and 5 in the indictment. He gave a statement to police about what he observed on 16 June 2014. He has not been charged with any offences and the Crown does not allege that he was involved in any way in the abuse of the child leading to the injuries earlier mentioned. The accused was first interviewed on 27 May 2014. She claimed that the child had injured himself falling down stairs the previous Thursday. But she had not seen that happen. She said that if she had suspected that the mother was hurting the child she would have contacted the authorities herself. She also said that on a previous occasion she had seen the child standing by the refrigerator but did not pay much attention to why that was so as she was very tired. She was arrested on 16 September 2014. She was interviewed again and gave an exculpatory account, denied ever seeing any extensive injuries on him that were reported on 26 May 2014 and denied that she had committed any assaults upon him. She said she had not seen any person injure the child.
5. Between 11 July 2014 and 23 September 2014 a number of telephone calls were intercepted between the accused, CC and DD but no incriminating statements were made by the accused. She is the mother of children herself and has no prior criminal convictions.
6. In the affidavit evidence from the applicant's solicitor is a history of the course of the proceedings up to the present time. As with the character of the allegations in this matter that history is very depressing reading. The trial of this accused has been adjourned on a number of occasions and I accept that, through no fault of the accused, a number of those adjournments have occurred. The current trial was listed almost a year ago but for reasons unknown to me the hearing of the stay proceedings and related matters was fixed for two days on 18 and 19 July 2019, just over a week before the trial is to start. In the context of hearing this application over a day and a half, attending to other work, including the sentencing other people unconnected with this matter, the timetable has placed a great deal of pressure upon the Court to return an early decision and judgment, in the knowledge that it is open to the Crown to appeal as of right to the Court of Criminal Appeal should the Court order a permanent stay or otherwise make orders with which the prosecution does not agree, and/or with which the learned Attorney General may not agree. Such relief that may be provided to the applicant by the Court of Criminal Appeal to correct any error of myself would only be available by grant of leave. I am mindful of the fact that should the parties seek interlocutory relief from a superior court that may further delay the trial. Of course, every party has its rights of appeal to correct error and I fully appreciate my accountability to superior courts in determining this matter. I have not had regard to the implications of any decision I make in terms of the rights or otherwise of the parties to seek relief. Even if interlocutory relief is unavailable, particularly to the applicant, any error that I make adversely affecting a party is amenable to review in due course on a question of law or by appeal after conviction.

Identification of issues and consideration

1. Because of the time constraints, self-evident from the chronology above, it is not appropriate, nor necessary, to trawl through all the material that I have been presented with which the parties have each had many hours longer than I have had to digest it. Ordinarily in such a judgment it would be appropriate to deal with every argument of substance that has been advanced and cite the material that has been presented by way of evidence at great length. However, I do not propose to do that. Instead, I propose to, by reference to the submissions of significance, attempt to analyse the issues that the various parties raised either in evidence or in submission in the course of the proceedings.
2. There is a need however to deal with a matter at the core of each of the matters raised on behalf of the applicant. I am a little dismayed that some of the issues that I am required to deal with 'at the heel of the hunt' in the course of the litigation, were not dealt with in proceedings directly concerned with issues to be raised at the trial and/or issues for consideration of this time. The matters that I refer to are earlier decisions of the Court of Criminal Appeal and the Court of Appeal in respect of this accused and the implications of s.29 Children and Young Persons (Care and Protection) Act 1998 ('the Act'). Without covering all of the litigation history, after initial proceedings in the District Court, ultimately decisions were made by the appellate courts, firstly in 2017 in the Court of Criminal Appeal, and then in 2018 in the Court of Appeal, which are at the heart of the central claim of the applicant that she cannot get a fair trial by operation of the provision of the Act to which I have referred. That is so because the applicant cannot raise material held within the files of FACS concerning the reporting of the conduct of the mother of the child towards the child. This material within the files of FACS which is contained within an envelope that is sealed and is identified for the purposes of these proceedings as "Annexure C" (to an affidavit sworn by the applicant's solicitor) is available to the defence and the Crown. However it cannot be used in any criminal trial concerning the child and any claims made concerning criminal conduct towards him. After first consideration by Justice R A Hulme on 1 September 2017 (R v Hayward (a pseudonym) [2017] NSWSC 1170) and then by a five Judge bench on appeal (R v Hayward [2018] NSWCCA 104) it was held that reports made under s.29 of the Act were not admissible in criminal proceedings in any court and the legislature intended to exclude production of reports or evidence of their contents in criminal proceedings, either overturning or not two following earlier decisions of the Supreme Court and the Court of Criminal Appeal from 2013 and 2014. The Court held that the phrase 'proceedings in relation to a child or young person before the Supreme Court", in s.29(1)(d)(iii) of the Act, did not extend to proceedings in the Supreme Court on indictment or charges in relation to which a child was a victim.
3. Following upon this judgment the applicant obtained a decision from a District Court judge on 16 August 2018 that there was power under s.29(1)(f)(ii) of the act to allow identification of a person who made a relevant report or the disclosure of information from which identification could be introduced. The Secretary of FACS appealed that decision to the Court of Appeal. In a decision of a five Judge bench shortly entitled, FACS v Hayward [2018] NSWCA 209, the Court of Appeal held that "the section" operated to make all "harm reports" inadmissible in criminal proceedings and prohibited the compelled disclosure of those reports and persons who were the source of those reports ([64]-[71], [85], [91]-[92]). As a consequence of the cases to which I have referred, each specifically concerned with the current applicant, it was submitted that the applicant cannot rely upon subpoenaed material in the possession of the applicant and the Crown and the operation of s.29(1)(d) of the Act precludes any means by which the applicant can determine and then seek to locate persons who report information that may support evidence of 'tendency' on the part of the mother of the child to act in particular ways. As there is no way around the decisions to which reference been made, although there is some other evidence to support those claimed tendencies elsewhere, and as there is no warning or direction that can be given to cure the unfairness that results from an inability to produce the relevant material or identify the 'reporters' to avoid or minimise that unfairness, the applicant cannot receive a "fair trial".
4. In this context it is worth noting that three tendency notices have been served upon the Crown by the legal representatives of the applicant. Those Notices were dated 25 July 2017, 8 August 2018 and 22 May 2019. The Crown indicated, in the hearing of this application, that it would not oppose the accused relying upon particular tendencies identified in the Notices being relied upon for the purposes of the conduct of the accused's defence. But not all of them. The prosecutor forwarded to my chambers on Friday evening, after oral argument had concluded, a list of the particular tendencies conceded to be available to the accused from the material that is available at trial and not otherwise precluded by the operation of s.29 of the Act. That document I will mark as an exhibit in the proceedings. To summarise, it is conceded there is evidence that may support tendencies to "engage in violence against children in her care" (in relation to the child only), "to neglect her children", "to endanger her children", "to inappropriately discipline children", "to abuse prohibited drugs/prescribed restricted substances", "an inability to regulate emotions, to lose her temper", "to inflict physical injuries upon the child", "to deny that she inflicts physical violence upon the child", "to attribute the child's injuries to having fallen downstairs", "to fail to obtain medical attention for injuries to the child in the context of known or unexplained injuries", "to giving inconsistent accounts to authorities about the origin of injuries to the child".
5. There are other tendencies that are not conceded by the Crown to be supported by the evidence, but that is not to say, in the context of what is admitted by the Crown on the available material, that the trial judge may not permit other tendencies to be relied upon by the accused or widen their scope. It is not my responsibility to rule upon those matters. But even if the tendencies were limited to the matters conceded by the Crown, clearly these would be a significant matters, by definition pursuant to ss.97 & 101 Evidence Act 1995 for the purposes of the case sought to be conducted on behalf of the accused, as to alternative explanations for the injuries to the child to those offered by the three witnesses who variously implicate the accused in the offending behaviour with which she is charged. For the purposes of this judgment I need not delve deeper into those further tendencies claimed by the accused to be held by the child's mother.
6. Three further aspects of the judgment of the Court of Appeal require mention at this point. Firstly, the judgment of the Court of Appeal overturned an earlier judgment of the Court of Criminal Appeal in Re Attorney General's Reference (otherwise known as R v FEW [2014] NSWCCA 251), in which the leading judgment was given by Macfarlan JA at [2]-[50]. Hence, the Full Bench in relation to Hayward v R. But what remained undisturbed from the following judgments of Hayward, were what were described in submissions before me as the 'obiter dicta' of his Honour at [46]-[48] concerned with the constitutionality of s.29 of the Act. The second aspect is that the Court in the Court of Appeal matter involving the appeal by the Secretary of Department of FACS v Hayward, at [88]-[90], also addressed the issue of the constitutionality of the provision. I will come back to implication in those judgments in respect of the Notice issued by the accused.
7. The third matter is directly concerned with this stay application. The Court specifically noted that in relation to the 'present case', that is this matter, the legislative scheme did not purport to diminish or interfere with the independence and impartiality of the court exercising criminal jurisdiction, nor to diminish its "inherent" (sic) power to address, potentially by way of a permanent stay, proceedings which might constitute an unfair trial [89]. Hence this application to permanently stay the proceedings. However, that observation also has relevance to an alternative submission that was made by the applicant in supplementary submissions that underscoring "the unconstitutionality" of s.29 of the Act, this court was unable to exercise any power it had to stay the proceedings. That the Court of Appeal noted the possible remedy of a "stay" to overcome any purported "injustice", does not mean that a stay would ordinarily follow.
8. I have to be discursive at this point and deal with what I regard as a minor side issue to the submissions of the applicant. I do not understand that this Court has a relevant "inherent" jurisdiction as arises from the jurisdiction of the Supreme Court of New South Wales. My understanding is that this Court has, as an inferior court, has implicit jurisdiction to enable it to exercise its statutory powers and express powers as permitted by the District Court Act, or other legislation required to be considered in exercise of this Court's jurisdiction. An illustration of that is in fact the decision of the Court of Appeal overturning a judgment of my own, reported as John Fairfax Ltd v District Court of New South Wales [2004] 61 NSWLR 344, which held that my Court did not have jurisdiction or power to order the non-publication of the verdict of a trial because publication of the verdict could prejudice a forthcoming trial relating to the same accused. As it turned out this is one of the authorities footnoted in the Attorney General's submissions and relied upon here. Be that as it may, I take the reference to the "inherent power" to address proceedings by way of permanent stay (FACS v Hayward at [89]) to be a reference to the "implicit" power of this Court to stay criminal proceedings in circumstances where a trial would be unfair if it was allowed to proceed.
9. Both Crown and the defence have supplied a range of authorities relevant to the jurisdiction of this court to stay proceedings. Whether in fact the power is implicit or inherent or even expressed, there is no doubt that this court has power to stay proceedings where the further proceedings would constitute an unfair trial, where the continuation of a trial would involve an unacceptable risk of injustice and unfairness would be so "unfairly and unjustifiably oppressive" as to constitute "an abuse of process". A court is duty-bound to prevent an abuse of its own processes. (See Jago v District Court of New South Wales [1989] 168 CLR 23, at [30]-[31] Mason CJ). Brennan J in the same decision noted that the principles arising from an earlier decision of Barton v The Queen [1980] 147 CLR 75 had a dual purpose… "To prevent an abuse of process and the prosecution of a criminal proceeding in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice" ([95]-[96]). These principles have been variously stated in a range of authorities from the High Court subsequently, such as Dietrich from 1992, Ridgeway from 1995 and Edwards from 2009. Jago also pointed out that power to permanently stay a criminal trial on the basis of unfairness only arose where there was no other procedure available to the trial judge in the conduct of proceedings that can relieve against the unfair consequences of the trial (at [34] per Mason CJ, [72] per Toohey J and [76] per Gaudron J).
10. I also note from the submissions of the applicant, which I accept, that there are no closed categories of injustice and that the power to order a permanent stay was exerciseable when or where "the requirement of justice demands it" (see Rogers v The Queen [1994] 181 CLR 251 at [255], per Mason CJ)
11. The Crown referred the Court to a recent decision of Johnson J in Webb, [2012] NSWCCA 216 at [64]-[66]. This authority in summarising decisions of the High Court, including a number referred to by the applicant such as Williams v Spautz from 1992 and Walton v Gardiner from 1993, noted the wholly exceptional character of a permanent stay proceedings, the onus upon the applicant, the determination of the matter by a weighing process involving a subjective balancing of a variety of factors into consideration including fairness to the accused, the legitimate public interest in the disposition of charges for serious offences, the conviction of those guilty of crime and the need to maintain public confidence in the administration of justice. The applicant submits all these matters militate in favour of the application. Johnson J referred to Chief Justice Spigelman's judgment in WRC [2003] NSWCCA 394, at [55]-[56], where his Honour noted that a permanent stay of proceedings can only be ordered in an 'extreme case'.
12. The High Court in Dupas [2010] HCA 20, at [35], discussed the characterisation of a case as extreme or singular as: "….recognis(ing) the rarity of a situation in which the unfair consequences of an apprehended defect in the trial cannot be relieved against by the trial judge during the course of the trial." The High Court in the same paragraph said: "there is no definitive category of extreme cases in which a permanent stay of proceedings will be ordered. In seeking to apply the relevant principle in Glennon, the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences".
13. It is conceded in the submissions of the applicant and certainly demonstrated in the submissions of the Crown, that the unavailability of evidence at trial, whether by destruction or some other cause, does not necessarily require a stay of proceedings. In fact it is conceded that the loss of an opportunity to explore an avenue of enquiry which might have led to an acquittal is not the basis for a stay, with a number of authorities identified at paragraphs [67]-[68] of the applicant's submissions. The Crown specifically quotes the dicta of Gleeson CJ in the unreported case of McCarthy (NSWCCA - 12 August 1994, at p 11), citing an earlier decision in Adler (also referred to by the applicant, unreported NSWCCA, 11 June 1992) accompanied by his Honour's trademark 'humour'.
14. In this context the applicant notes decisions of the Court of Criminal Appeal that have considered the implications of the unavailability of evidence resulting from the operation of legislative provisions. One such decision was Morgan [1993] 30 NSWLR 543, which was a conviction appeal, the other a more apposite authority R v PJE (NSWCCA, unreported 9 October 1995) where the Court considered the same provision discussed in Morgan (S 409B Crimes Act which rendered evidence of the sexual reputation of a complainant inadmissible save for particular exceptions) in the context of the appropriateness or not of staying the proceedings. It was held in that case, that the jurisdiction to stay an indictment did not extend to including within it a perception of unfairness arising from the operation of a validly enacted statute of the Parliament (Sperling J at [15]). His Honour went on to say that a court should decline to exercise its jurisdiction to stay proceedings on the ground that in the opinion of the court the trial would be unjust because of the operation of a statutory law relating to the way the trial was to be conducted. Parliament had the prerogative to say how the trial was to be conducted and courts cannot override that prerogative by refusing to exercise that jurisdiction (at [17]-[18]). Grove J in generally agreeing, noted that "circumstances can no doubt be contemplated in which it can be predicted that a trial will inevitably be unfair therefore an abuse of process and a stay of proceedings appropriate".
15. The applicant notes that in the special leave application for that matter that the High Court observed that "to grant special leave would elevate to the level of arguability the proposition that a court may decline to exercise its jurisdiction to try criminal cases because it forms the view that a law enacted by Parliament is unfair. This is not a view to which a court is entitled to give effect in determining whether to exercise its jurisdiction when it is properly invoked". That observation is taken into account.
16. In this legal context it was submitted by learned counsel for the applicant that the exceptional circumstances required to be established had been by the applicant. Unlike supposedly similar circumstances where legislative provisions or other legal reasons denied an accused person access to evidence or avenues of enquiry, such as 'public interest immunity' or 'lawyer client privilege', in this matter it is the parties who have access to the relevant material which is denied to the court as a result of the two 'Hayward' decisions from 2017 and 2018. It is in the context of knowledge of the contents of the material prohibited from production to the court by the operation of s.29 of the Act that it is submitted that there is a "quantitative and qualitative" gap between the material that is available to support the existence of the relevant tendencies. They are probative, it is submitted, of the likelihood that the acts alleged against the applicant were at least possibly committed by the child's mother, whether in company with the co-accused DD or not. In other words it was being submitted that "we know more than you know your Honour and in good faith you would be making a terrible mistake in the circumstances not to grant a stay of proceedings because it is totally unfair for the trial to be conducted with one or two hands tied behind our back". This is to paraphrase the essence of what was being put. The circumstances of the matter are said to be not only unusual but "unique". I take into account that it is submitted that the applicant was a person of good character who could not get a fair trial given the prohibition upon production of the material said to be relevant to the conduct of the mother of the child towards the child over a period of time. Further, it is noted in the submissions that the applicant has done "everything" that is open to her to get access to the material. Therefore no stone has been left "unturned" to find a way in which the matter can be properly litigated. Those last matters I accept.
17. The Crown's position is that even allowing for the matters above, there is available a body of material which supports the tendencies, or many of the tendencies, sought to be relied upon by the accused. The Crown would not deny that the mother of the applicant was a neglectful mother who had injured her child on occasions and had the personality traits upon which an argument could be mounted that it was reasonably possible that acts alleged against this accused could reasonably possibly be attributed to the mother during the period of time that she and the child lived in the home of the accused. However, the Crown pointed out that the self-admitted conduct of the mother in relation to the matters to which she had pleaded guilty, and the other evidence available in the matter from other sources, such as medical evidence that supported the suggestion that a number of the injuries of the child seen on 26 May pre-dated the period of time during which it was alleged the child was injured by the accused either in company with DD or by herself, was not relevant in the Crown case against the accused. This was so given the available of evidence DD, and the evidence of EE in relation to counts 4 and 5. The prosecution case was not dependent upon the reliability of the mother apart from matters in the Crown case that did not appear to be in dispute, such as the fact that the mother and the child resided in the home of the accused during the period pleaded in the counts in the indictment.
18. Whether the matter is "unique" or not I am unable to say, but the particular circumstances may be described as "unusual". Whilst the central matter complained upon by the applicant is not of itself unusual in the criminal trial process, such as inability to access material the subject of an upheld claim of public interest immunity or legal professional privilege, as was pointed out usually it is the Court that has access to that material to the exclusion of the parties, or at least the party seeking access. It is said that the Court can judge the matter in that context. Whereas here the situation is reversed.
19. I cannot conclude that the applicant has ultimately established that the situation is so extraordinary that it constitutes an abuse of process or that any resultant trial would be "unfairly and unjustifiably oppressive" or would result in a trial which is "unfair when judged by reference to accepted standards of justice" weighing up the various matters discussed in the authorities such as the decision of Webb. Nor, can I conclude that the trial will be of such a nature that there was "nothing that a trial judge can do in the conduct of the trial that can relieve against its unfair consequences".
20. The starting point of a consideration of this matter is the reality, as I understand the Crown case, that the proof of guilt of the accused is not solely dependent upon the truthfulness and/or reliability of the child's mother. There is available direct eyewitness evidence from two witnesses, one of whom has admitted his guilt in relation to conduct said to have been, on his admission, in company with this accused. The reliability of DD and EE is not dependent upon the truthfulness and/or reliability, or even the existence, of a relevant tendency of the child's mother. In fact, one would expect having regard to the pleas of guilty of DD that there would be evidence from him reflecting unfavourably upon the child's mother and supporting aspects of the tendencies sought to be established in respect of her. The matter may have been different if the mother had been the only witness that implicated the accused or was the only person who provided an alternative hypothesis as to the cause of harm to the child. But this is not the case.
21. The matter does not end with this consideration. From my reading of the material and consideration of all that has been put both in writing and orally by the learned counsel for the Crown and the applicant there are a large number of other matters to be taken into account in determining whether the absence of access to evidence within Annexure C, the material prohibited to the Court and the jury by operation of s.29 of the Act make the trial relevantly unfair. These matters include the following: 1. there was no dispute on the part of the Crown that there is available evidence of particular tendencies and this will be conceded of the trial. The tendencies ultimately relied upon by the accused may be wider and more numerous. 2. the evidence in relation to those tendencies will be available from a range of sources independent of any evidence given by the mother. That evidence will come from the circumstances of her pleas of guilty, from a daughter who has provided a statement of prior misconduct towards her on 4 June 2014, from DD and possibly EE 3. the accused will have the opportunity of cross-examining the mother and will not only be able to put matters to her in support of the claimed tendencies and her observed conduct by others, but will be able to put matters within her clients knowledge (which I note have not been provided to this court.) Counsel will also, in my view, be able to cross-examine the complainant as to the fact (as it is known from Annexure C) that the mother had been, prior to her residence with the accused, been the subject of report and investigation by FACS. In fact, notwithstanding the decisions of the Court of Criminal Appeal and the Court of Appeal in this matter, there is no reason, I would have thought, that the accused could raise with the mother particular instances known to the defence of misconduct by the mother without "putting" to the witness that those particular incidents had in fact occurred or suggesting in court the specific source of the information. It may be that the mother would admit particular matters. This aspect of the matter will no doubt create ethical issues for the Crown Prosecutor given his knowledge of the information available from the s.29 reports denied to the Judge and the jury. It will also require highly skilful and careful cross-examination by Counsel for the accused who is well capable of that task as her conduct in this matter has demonstrated. 4. the medical evidence to which I earlier made reference and which is the subject of detailed supplementary submissions by the applicant's Counsel demonstrates two matters that could work in favour of the accused. Firstly, the child when examined on 26 May had a range of injuries beyond the injuries claimed by the Crown as being caused by the accused and/or by the accused in company with DD. In fact my reading of the litany of suffering of the child suggests injuries extending far beyond that for which this accused could reasonably be held accountable. Secondly, the ageing of the injuries as I understand the Crown case, places, at the very least, "possible" occurrence of injury or injuries some weeks before the child came in contact with the accused, creating an irresistible inference that the mother is responsible for a number of those injuries said to have been caused before 10 May 2014, the earliest date pleaded in the indictment. 5. the Crown has conceded that material in a psychological report prepared by Dr Ashkar in relation to the mother and her personality and other psychological issues, prepared as I understand it for the purposes of her sentencing proceedings, could be provided to the jury in the form of an 'Agreed Fact'. 6. it appears to me that it would be open to the trial judge to direct the jury concerning forensic disadvantage arising out of the inability to rely upon material because of the operation of s.29. Trial judges have a duty to direct juries in relation to aspects of forensic disadvantage to parties in a range of ways, and a range of circumstances. In the context of an exchange with Counsel for the applicant, where she said that she had been unable to formulate an appropriate warning or direction, that is not to say, depending upon how the trial unfolds, that an appropriate warning or direction could not be given to the jury at the completion of the evidence of mother and/or in the summing up. I have not undertaken the task myself; it would be a matter that would be dependent upon the way in which the matter was characterised to the trial judge and the evidence at the trial. 7. the Crown in submissions conceded not only that the available evidence would show the mother was 'clearly' violent, grossly neglectful, unreliable, had told lies out-of-court and had criminally endangered a child (as noted above), but also observed that depending upon how the trial unfolded, if it emerged from the trial that the witness was more centrally pertinent to the Crown case than anticipated at the present time and if, in response to questions, she gave answers in respect of which the s.29 material demonstrated that she had told lies on oath in Court, the Crown would need to consult with the Director of Public Prosecutions as to whether an "executive decision" as to the future course of the trial be made.
22. Thus, having regard to the matters advanced on behalf of the applicant and Crown, I have concluded that the applicant has failed to justify the making of an order to permanently stay the proceedings. The trial may not be perfect. There are many challenges for the Crown and the Defence. But it will not be relevantly unfair to the point of oppression given the Crown case that the accused will be required to meet.
23. Application is made for an alternative order "conditionally staying" the proceedings. This expressed another way is an application for an adjournment in order for the applicant to pursue available remedies in other jurisdictions, either by appealing the decisions I make in this matter, or alternatively pursuing the "constitutional" issue, should the court determine that a reference be made in respect of the Notice issued to the various Attorneys. It certainly is the case that the Supreme Court has "inherent power" to direct a temporary stay of proceedings to prevent injustice and has a responsibility to avoid unfairness by such an order (McDonald, Maitland v R [2016] NSWCCA 306 at [140]. The High Court decision in Jago appeared to permit the District Court to make an order of this type. Clearly, however expressed, the District Court has both legislative and implicit powers to order adjournments or "temporary" stays if the justice of the matter dictates that should be done. However, I am not persuaded that a conditional or temporary stay should be ordered in this matter unless there was other litigation that could properly be conducted in respect of this matter in another jurisdiction without the grant of leave. An application by the accused pursuant to s.5F Criminal Appeal Act, 1912, would require leave. I am not in a position to determine whether leave be granted by the Court of Criminal Appeal. But in that Court, time and time again, it is made clear that trials should not be delayed, at least by the court below to accommodate a claimed desire for a litigant to pursue its, or his or her rights, unless the Court of Criminal Appeal itself directs that be done. Any review of the decisions I make in this matter will need to be undertaken should the applicant be convicted by an appeal against conviction.
24. Counsel for the applicant in "additional supplementary submissions", indentified 11 matters to be taken into account in considering this application. These matters include "differences" in views of different appellate Courts, the need for certainty of the law to obtain a fair trial, the prejudice to the accused if the legislation is ultimately found to be invalid, such delay that has occurred is not the fault of the applicant. I have taken these and the other matters into account. Not all matters raised are valid I hasten to say. The fragmentation of the proceedings is to be avoided and the delay (even if not the fault of the accused) is inexcusable. It is over 5 years since the child was injured. But I am not persuaded to make the order sought.
25. As to the Notice issued by the applicant relating to the constitutionality of s.29 of the Act the essence of that matter as claimed by the applicant is that the operation of s.29 (1)(d) of the Act violates the principle referred to as the 'Kable' principle (Kable v Director of Public Prosecutions [1996] 189 CLR 51). That principle is discussed in Condon v Pompano P/L (2013) 252 CLR 38 at [122]-[126]. The principle has been applied in a number of the other decisions including the decision of Fardon v Attorney General of Qld (2004) 223 CLR 575, cited in "Pompano", and the "Gypsy Jokers Motorcycle Club" decision of the High Court from 2008.
26. As the majority of the High Court in Pompano identified, the State courts have a constitutionally mandated position in the Australian legal system, the Australian Constitution does not permit different grades or qualities of justice, thus the Parliaments of the States may not legislate to confer powers on State courts which are repugnant to, or incompatible with, their exercise of the judicial power of the Commonwealth. "The essential notion is that of a repugnancy to, or incompatibility with, that institutional integrity of the State courts which bespeaks their constitutionally mandated position in the Australian legal system" Pompano at [122]. The majority went on to make the further points that critical notions of repugnancy and incompatibility are not susceptible of further definition in terms that necessarily dictate future outcomes. The repugnancy doctrine does not imply into the Constitutions of the States the separation of judicial power mandated by the Commonwealth by Chapter III of the Constitution Act and that content must be given to the notion of "institutional integrity" of the State courts. That too is a notion not readily "susceptible of definition in terms which will dictate future outcomes" at [124]. The majority went on to note that impartiality and independence are defining characteristics of all the Courts in the Australian judicial system. They connote separation from other branches of government, at least in the sense that the State courts must be and remain free from external influence and the courts cannot be required to act at the dictation of the Executive. Because the separation of judicial power mandated by Chapter III of the Constitution does not apply to the States and is not implied in the Constitutions of the States, notions of repugnancy to and incompatibility with continued institutional integrity of the State courts are not to be treated as if they simply reflect what Chapter III requires in relation to the exercise of the judicial power of the Commonwealth.
27. Both the applicant and the Attorney General agree here with the basic principle that a provision in a State statute conferring an authority on a State Court capable of exercising Federal jurisdiction which is repugnant to the "judicial process" in a "fundamental degree" is not constitutionally valid.
28. The applicant submits that of particular relevance to the current situation is the observation in Pompano at [142] that basic to "institutional validity" was the requirement that courts conduct "… open and public enquiry… the application of the rules of natural justice, the ascertainment of the facts as they are and as they bear on the right or liability in issue and the identification of the applicable law, followed by an application of that law to those facts"
29. The applicant particularly relying upon the reference to "the ascertainment of the facts as they are and as they bear on the right or liability in issue.."
30. The applicant submits essentially that the laws of the Parliament should not operate in such a way that they are "inimical to the idea of a fair trial" and that contrary to the 'Kable principle' the reputation of the judicial process is in question where courts are compelled to admit or exclude certain evidence where, as a consequence, the chances of an accused receiving a fair trial are seriously diminished, citing Toohey J , Nicholas v The Queen [1998] HCA 9 at [53]-[54].
31. It is submitted by the applicant that as a result of the interpreted operation of s.29 of the Act by the Court of Appeal, the Court does not "retain decisional independence" or the "power necessary to mitigate the extent of the unfairness to an accused". Thus bringing the "criminal trial process into disrepute". The last quote from KS v Veitch (No. 2) (2012) 84 NSWLR 172. This situation interferes with the institutional integrity of the District Court and is "repugnant to a judicial process to a fundamental degree" (International Finance trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319 at [140], per Heydon J.) The applicant acknowledges the obiter remarks of Macfarlan JA in Re AG'S Reference , (earlier cited) at [46]-[48], from 2014, were not expressly addressed in the Court of Appeal decision relevant directly to this matter (FACS v Hayward). In that judgment his Honour rejected the claim of constitutional invalidity of s.29, given that the legislature had made plain its intention to interfere with "important rights of the accused". He observed that the State Parliament has authority to enact laws regulating the conduct of criminal trials within the State, balancing competing interests and objectives. In regard to "the section" he set out the competing considerations. He concluded that the legislation in question could not be described as either arbitrary or manifestly disproportionate to the issues at stake. I note of course that his Honour was referring to specifically s.29(1)(e) of the Act. But that is a provision that has the same effect, in reality, as s.29(1)(b)(iii) with which the Court of Criminal Appeal and the Court of Appeal were specifically concerned in relation to this matter. His Honour concluded that, as with the decision of Veitch (which I heard at first instance), the section "did not deprive an accused of some source of information to which he (sic) was presumptively entitled". Nor was it a law in that case that "would tend to bring the criminal trial process into disrepute" (Veitch at [65]). He also pointed out that if the construction of the provision he was considering constituted "an erosion of the accused's right to a fair trial", it had not occurred without careful consideration and attention to "rational competing objectives". His Honour went on to say: "As such, it is not an erosion of such a type or magnitude that should be regarded as interfering with the institutional integrity of the Supreme Court" (noting Toohey J's observations in Nicholas, to which I earlier referred). He concluded: "It is not therefore "repugnant to the judicial process in a fundamental degree"".
32. There is also the obiter observations in the decision of the Court of Appeal, in Hayward which have already been cited from [88]-[90] of that judgment. The Court referring directly to 'Pompano' and noting that there were two factors critical in rejecting the challenge. One was that the process being considered was analogous in some respects to that used in the determination of public interest immunity claims in the exercise of the inherent power of the Supreme Court. Secondly, "in relation to the criminal trial to be held in the present case", (emphasis added), the legislative scheme "did not purport to diminish or interfere with the independence and impartiality of the court exercising criminal jurisdiction, nor to diminish its inherent power to address, potentially by way of a permanent stay, proceedings which might constitute an unfair trial".
33. In this context the matter has been considered by me with a conclusion that the legislation does not render a trial of this accused relevantly "unfair". The Court noted in the Court of Appeal decision that the express provision contemplated that it should apply to a criminal trial. The legislature had chosen to "override any interest in accused person may have in ascertaining the identity of the maker of such report, so as to protect the interests of vulnerable children as a class". In this matter it might be further added, to also prevent reliance upon evidence available from reports "to protect the interests of vulnerable children as a class".
34. Even allowing for recognition of the fact that the observations of Macfarlan JA and the Full Bench of the Court of Appeal are dicta, I would have thought given my lowly position in the judicial pecking order that it was dicta that was ultimately persuasive. It is a matter for a superior Court, either a New South Wales "Appeal Court" or the High Court to overrule. The matters raised in the Attorney's written submissions on this topic, at [19]-[21], I accept and adopt.
35. I have noted the arguments put at [99]-[100] of the applicant's original submissions, the claim that the effect of the legislation prevents relevant material being brought before the finder of fact, may impinge upon the duty of the court to act impartially in the context of the process of judgment being founded on the antecedent rights and liabilities of the parties, and the requirement of the court to "find the facts and apply the law which at the relevant time prescribed those antecedent rights and liabilities", citing Brennan J in Nicholas (1998) 193 CLR 170 [188]. These submissions include an assertion that the legislation "prevents" the applicant from "responding to the Crown case against her", a proposition with which I disagree for reasons earlier stated in relation to the "stay" application.
36. The applicant also notes as I do that s.29 denies the court the opportunity to assess the "cogency or veracity" of the evidence. As earlier pointed out this distinguishes this matter from the situation in public interest immunity matters and in the "protected confider" provisions at s.298 Criminal Procedure Act 1986 as discussed in Veitch (No. 2). Thus, it is submitted the legislation requires the court to exercise judicial power of the Commonwealth in a manner that is inconsistent with "traditional judicial processes", as was found in Kable by Toohey, Gummow and Gaudron JJJ, because it calls into question the "institutional integrity" of the trial court.
37. Some of the matters I have identified above, particularly in relation to the persuasive nature of earlier dicta, are identified in the Attorney General's written submissions and supplementary oral submissions. In that regard, I adopt his construction of various aspects of s.29 of the Act, to the extent that they are consistent with the earlier decisions, of the Court of Criminal Appeal and the Court of Appeal. The Attorney General further submits through his learned counsel's written submissions in the section headed 'Argument', that a constitutional question should not be decided unless it is necessary to do justice in the given case to determine the rights of the parties, which does not arise in this matter given the previous rulings of the Court of Appeal and the Court of Criminal Appeal. It is submitted that Pompano, both in the majority judgment and the judgment of French CJ, explained that laws that were "repugnant to or incompatible with exercise of the judicial power of the Commonwealth", (which the learned lead counsel for the Attorney reminded this court it was currently exercising despite the character of the litigation), were laws that affected the institutional integrity of the court such that the court no longer exhibits in some relevant aspect the defining characteristics which may set a court apart from other decision-making bodies. These matters include "the reality and appearance of decisional independence and impartiality", "the application of procedural fairness", "adherence as a general rule to the open court principle" and "the provision of reasons for the court's decisions" (Pompano at [67]. None of these matters are compromised here. He reiterated the recognition by the applicant of the power of the Parliament to make laws relating to evidence and procedure in relation to criminal trials. The Parliament may even alter the rules of evidence and procedure in ways "that are repugnant to the traditional judicial process, without compromising the institutional integrity of the courts that must administer that legislation" (Fardon at [41] per McHugh J).
38. In written and oral submissions he noted the decision of Graham v Minister of Immigration [2017] 263 CLR 1, particularly at [31]-[35]. He emphasised the High Court's observation at [32] that it had long been accepted that laws may regulate method or burden of proving facts. That judgment pointed out by reference to the judgment of Brennan CJ in Nicholas, earlier cited, that the former Chief Justice explained that whilst the court in the exercise of its "inherent" powers may provide for practice and procedure, the courts remain subject to "overriding legislative provisions". "Rules of evidence have traditionally been recognised as being an appropriate subject of statutory prescription" (Graham at [32]).
39. It is submitted by the Attorney that s.29(1)(d) particularly is "clearly" a provision dealing with reception of evidence and provides that evidence falling into a particular category is inadmissible. It applies to both parties, both Crown and defence, it does not affect the requirement of the prosecution to prove the charge beyond reasonable doubt, it deems no fact to have been proved, it does not impair the trial court's functions of finding the facts and applying the law. All these matters militate against the applicants contentions. It is of the same character as rules governing public interest immunity, protected confidences et cetera. Other provisions within s.29(1) serve to facilitate the protections that the Parliament sought to give reporters of child abuse or neglect and the detail of those reports.
40. The Attorney notes in his submissions that there is no unqualified "right" to rely on all evidence that may be relevant to the conduct of a defence, as any such "right" was subject to the admissibility of that evidence of trial, as was pointed out by the Court of Appeal in FACS v Hayward, at [71], [75]. It was also pointed out that as was noted in the Gypsy Jokers decision of the High Court that a court may be required to arrive at a decision "on something less than the entirety of the relevant materials" (Church of Scientology Inc v Woodward (1982) 154 CLR 25, at [61]: Gypsy Jokers V Commissioner of Police (2008) 234 CLR 532 at [24], [189]. These matters identified, I accept as conforming with the authority by which I am bound. I accept the submission of the Attorney that the relevant legislation does not take away fundamental powers of the court, nor direct the court "as to the manner and outcome of the exercise of (its) jurisdiction "which would impermissibly impair the character of the courts as independent and impartial..." Gypsy Jokers at [39].
41. I also accept the submission of the Attorney at [28]-[33] of his written submissions, consistent with the earlier Court of Appeal decision concerning this applicant, that the legislation reflects the power of the Parliament to enact evidentiary procedural rules to strike a balance between "competing interests". I accept the proposition that although the court does not have the power to weigh the competing public interests in determining the admissibility of the evidence, that balance having been decided on by Parliament, did not suggest "constitutional infirmity". Both Graham and Nicholas held that the weighing of public interests "has never been said to be the exclusive preserve of the courts" (Graham at [35]: Nicholas at [55]). It was submitted that Graham is a case where it was held that the fact that a Minister of the Crown or a government agency could withhold or control the disclosure of information to accord did not affect "the appearance of the court's impartiality" at [37]. It was also noted the constitutional scheme for the exercise of Commonwealth judicial power nevertheless permitted "a degree of institutional and procedural flexibility on the part of the Parliaments of the States, which may travel beyond the limits permissible in Federal courts created by the Parliament (K Generation v Liquor Licensing Court [2009] HCA 4 at [88]. As was noted in the written submissions of the Attorney, in Fardon McHugh J at [41] observed that the "bare fact" that the legislature invested a State court with powers "repugnant to the traditional judicial process will seldom, if ever, compromise the institutional integrity of that court to the extent that it affects the court's capacity to exercise federal jurisdiction impartially and according to federal law". His Honour stated at [42], "State legislation that requires State courts to act in ways inconsistent with traditional judicial process will be invalid only where it leads to the conclusion that reasonable persons might think that the legislation compromises the capacity of State courts to administer invested Federal jurisdiction impartially according to Federal law. That conclusion is likely to be reached only when other provisions of the legislation or the surrounding circumstances as well as the departure from the traditional judicial process indicate that the state court might not be an impartial tribunal that is independent of the legislative and executive arms of government". These later circumstances are not the situation in respect of the challenged legislation and its operation in this Court in this matter.
42. An issue raised on the behalf of the applicant was that the effect of the operation of s.29 was such that it had the capacity to deny this court relevant information to the exercise of its discretion to stay the proceedings. In these circumstances this compromised the institutional integrity of the court, thus requiring referral of the matter to consider the constitutional implications. Naturally, I am keenly aware that there is information not available to the Court, but I do not accept that it renders the Court incapable of determining the stay application made by the applicant or compromises the institutional integrity of the court in that respect. There is nothing in the relevant legislation that reflects upon this Court's implicit power to grant a stay in the appropriate circumstances and this is recognised in different circumstances in parts of the decisions of Pompano and Veitch, referred to in paragraph [38] of the Attorney's submissions.
43. Notwithstanding, the submissions of the applicant "in reply" to the Attorney's submissions (at [18]-[33] of the 'reply' submissions), that the Court of Appeal did not itself assess the effect of s.29 to purportedly prevent the court from "properly exercising" its power to ensure procedural fairness and to prevent its processes from being abused, having already noted distinctions in the way in which public interest immunity and other matters are considered by a court from the situation here where the court cannot inspect the material that is inadmissible, I do not accept the submission of the applicant that the court was unable to exercise its power to order a stay in a manner that reflected a capacity to "act fairly and impartially". Such that it will have adversely impacted upon its "continued institutional integrity" as discussed in Pompano at [167].
44. Finally, I refer to an earlier observation I made, perhaps in passing, in respect of the "stay" application that if the evidence of the child's mother is so inconsistent with the material which the Court cannot inspect and about which the Court cannot speculate, in relation to matters central to the allegations against this accused there is recognised by the Crown Prosecutor the ethical obligation to consider relevant "executive" action that could be taken to relieve the threat of injustice. That the Director of Public Prosecutions has 'executive powers' to discontinue proceedings or that the Crown Prosecutor will have ethical responsibilities to discharge consistent with his role as a 'Minister of Justice' and the Bar Rules, are recognised by Courts and are expected by the Courts to be exercised in the appropriate case. These matters are beyond the control of the Courts without compromising the institutional integrity of the Courts. This is not an abrogation of the Court's "integrity" or "independence" to recognise the availability of "Executive" action to correct a perceived injustice in the appropriate case.

Conclusion

1. Having regard to all that has been put before the court I decline to make the orders, or any of the orders, sought by the applicant for the reasons set out above. This and the 28 preceding pages constitute the judgment of Judge Norrish QC of 23 July 2019

CROWN CASE STATEMENT BACKGROUND

1. The complainant [BB] was born on 31 March 2010. His mother is [CC].
2. In February 2014 when the complainant was almost 4 years old his mother moved to and address in Blackett, the home of the accused [AA]. The accused had been living at the premises for some time with her 3 children. In 2014 she was also pregnant with child later born in June 2014. The complainant and his mother slept in the lounge room of the premises.
3. At around about the same time that the complainant and his mother moved into the premises the co-accused [DD] also moved into the premises. He was a friend of [AA].
4. Whilst living at the premises a case worker from Family and Community Services, [EP] was tasked with monitoring [BB].
5. In late March 2014 [EP] attended the premises and found that the complainant seemed bright and happy.
6. Over the course of time that the complainant and his mother were living at the premises the relationship between [BB] and [AA] deteriorated.
7. On 26 May 2014 [BB] was seen at Mt Druitt hospital with a number of injuries, including a right sided subdural haematoma. He was transferred to Westmead Children's hospital child protection unit. His mother, [CC] gave a history that [BB] had fallen down some stairs. Medical opinion was that this history did not explain his injuries and an investigation followed. THE OFFENCES
8. The first time that anything occurred was approximately two weeks prior to [BB]'s admission to hospital. According to [CC] an argument developed as to whether [BB] had called [AA] a "motherfucker". The child denied saying this.
9. Taggart and the accused took [BB] to the bathroom and made him sit on a chair. They secured his hands behind his back with some sort of strap and turned on the cold water. [CC] could hear her son asking to be let out and calling for her.
10. The two co-accused repeatedly turned on the cold water and demanded that the complainant tell the truth. This incident lasted for about an hour. Afterwards the complainant's mother changed him into dry clothes. She noticed that he had red marks on his wrists. [Count 1 on the indictment - aggravated detain for advantage (in company)]
11. The next incident occurred a couple of days later. [BB] was sitting at the dining room table with the rest of the occupants of the house. [AA] became angry at the child because she believed he had given her a dirty look.
12. [DD] got up from the table and picked up a baseball bat. He returned to the table and threatened to hit the complainant with it on the "bum". The complainant's mother objected, but [DD] said that this was his and [AA]'s house so he could do whatever he wanted. He told the complainant's mother she could leave if she didn't like it. At some point the accused struck the child with the bat to his arm causing him to cry. [Charge as against [DD] only]
13. On a further occasion the complainant's mother saw the accused [DD] walk her son down the side of the house. The complainant called out to his mother. [AA] told her not to interfere as [DD] was teaching him a lesson. The accused struck the child a number of times to the legs and bottom with the baseball bat. [CC] could hear her son crying and screaming. Shortly afterwards the complainant returned inside and apologised to [AA]. Later that day when the complainant's mother took him to the toilet she saw that the child had red marks to his legs and bottom. [Charge as against [DD] only]
14. That same day the occupants of the house were having dinner. [AA] accused the complainant of spitting out his food and giving dirty looks. The incident escalated with the accused's children claiming [BB] had said "fuck off" which the child denied. [AA] told [DD] to get some Dettol. When asked what she was going to do with it she told [CC] that she was going to make him drink it. [AA] made the complainant drink a cup of Dettol, which made him vomit on the ground near the verandah area. [Count 2 on the indictment - cause noxious thing to be taken with intent to injure - [AA] only]
15. The following day an argument arose at dinner again when the complainant refused to eat dinner. He was again accused of giving [AA] dirty looks. The complainant was the taken by the two accused and placed on top of a freezer. The complainant asked to come down but was made to stand there. At some point [AA] knocked the freezer and the complainant fell to the ground. The complainant cut his head in the fall. [AA] said the cut was not deep and the complainant was not taken to hospital. [Count 3 on the indictment - assault occasioning actual bodily harm in company].
16. On Saturday 24 May 2014 a friend of [DD]'s named [EE] visited the premises at around 4:30pm. He noticed that the complainant had bruising to his face. At some stage [AA] walked out of the house and demanded to know why the complainant had given her a strange look. She made the complainant stand next to a Colourbond fence. This continued for over an hour with the [AA] repeatedly asking [BB] why he had given her a strange look and [BB] saying "I don't know".
17. At about 6pm [AA] called [BB] over and questioned him again. She told [DD] to grab the sand stone brick and give it to [BB]. The brick was about 20 - 30cms long about 10cms wide and 10cms thick. [DD] told the complainant to hold it above his head. The complainant was crying. If he dropped it or lowered it he was told by one of the accused to get the brick above his head. [DD] would pick up the brick and hold it over the complainant's head until he had no choice but to hold it. According to [EE] this went on for hours. The complainant continued to cry and complain his arms hurt. [AA] continued to ask why the complainant had given her a strange look and the complainant continued to say "I don't know". After some time [BB] said "fuck you" to [AA]. [DD] got up and swept the child's legs out from under him. [BB] fell and hit the right side of his head on the cement. The child began to cry and scream. The child had a red mark to the side of his head. After the accused checked he was not bleeding the child was made to return to where he was standing and hold a brick over his head. [DD] obtained a super soaker filled with water and soaked the child with water. It was very cold and the child was crying. [Count 4 on the indictment - assault occasioning actual bodily harm in company] The child was allowed to go inside for a warm shower at around midnight. [EE] stayed the night at the premises.
18. The following morning [BB] got up at around 7:30am. He complained that his head was sore. His mother gave him an apple to eat. The complainant stood beside the outside table to eat it. At this time [AA] walked past and kicked his legs sweeping the child's legs out from under him. He fell to the ground and hit his head. [EE] asked why she had done this and the accused said because the child had not said thank you for the apple.
19. That night [EE] returned to the house at around 8:30pm. [AA] made the child stand next to the fence because he had stared at her. She questioned him as to why he was doing it. The complainant said he did not know. She told the complainant to open his mouth and stick out his tongue. He did and the accused slapped [BB] to the bottom of his chin forcing him to bite his tongue. She punched him twice to the chin. She demanded to know why the complainant stared at her. [DD] became involved at this stage. He grabbed the complainant from behind with both hands to his biceps and lifted him off the ground. [DD] shook the complainant back and forwards aggressively for about 10 seconds. He asked the complainant "are you gonna answer [AA]? The complainant said "no". [DD] shook the complainant again for another 10 seconds before putting him on the ground. The complainant was pale and crying. [EE] tried to intervene. [DD] picked the complainant up again and shook him a third time. [EE] demanded that [DD] put the child down which he did. [Count 5 on the indictment - recklessly inflict grievous bodily harm in company]
20. Shortly afterwards the complainant collapsed on the ground and started shaking on the ground. The two accused told [EE] not to call an ambulance and they put the child into a shower. After a short time the two accused came out and the complainant was walking. [AA] said he was faking and that he had asked to go to bed. [EE] observed that the complainant was very pale. [AA] told [CC] that the child was sleeping outside tonight. [DD] put a pillow and blanket outside and the child was made to sleep outside for some time before [EE] told his mother to bring him back inside the house and put him to bed.
21. On 26 May 2014 [EP] again attended the premises. He was told by [BB]'s mother that they were planning to move to the Newcastle area. [EP] noticed that the complainant had bruising and swelling to both eyes and to his forehead. He took the child to Mount Druitt hospital. Medical Evidence
22. [BB] was examined and a CT scan performed. The complainant was found to have a right sided subdural haematoma. Amongst other injuries the complainant was found to have a 4 x 4 cm bruise to his right forehead. He had bilateral bruising and swollen eyes. He had a missing tooth, a laceration to the right side of his mouth, a 3 x 4 cm bruise behind his right ear and a bruise to his lower chin. He was transferred to Westmead hospital where he was referred to the Child Protection unit.
23. [BB] was examined by Dr Anna Stachurska. She provided an interim report dated 28 May 2014 and a final report dated 26 June 2014. The child presented with multiple injuries. He had multiple bruises across the right middle and left forehead of different sizes. There was a bruise on his left temple and an area of boggy swelling over the forehead descending onto the nasal bridge and the eyelids. There were bruises to both cheeks and along the outer rim of his right ear and on his left jawline. He had superficial abrasions to his mouth, lip and chin. It is the Crown case that these injuries were inflicted during the last two incidents. An x-ray revealed that the child had a fracture to the left radius and ulna, a fracture to his foot and fractures to his 6th and 7th rib.
24. The complainant also had an infected laceration to the back left side of his head. According to Dr Stachurska this injury likely involved blunt force trauma. It is the Crown case that this injury was caused by the fall from the freezer.
25. He had bruising to his spine, and an abrasion to his right lower thoracic area. He had a bruise over his left lateral buttock in an irregular shape of about 3 x 2cms. There was bruise on his right lateral buttock. He had ill-defined areas of bruising to his right thigh [total area of 9 x 6cms] and he had bruising to the back of his left thigh [approximately 10 x 6cm] There were two parallel pink/reddish marks over the posterior aspect of the right thigh that appeared to be a continuation of a faint pink mark on the left thigh. He had bruising to his shins.
26. A CT scan and MRI were performed on the complainant. Of significance was significant subdural bruising. [BB] had: 1. An extensive and relatively thin right hemispheric subdural haematoma; 2. A thin subdural collection (likely haematoma) around the left frontal and occipital poles 3. A thin subdural collection likely haematoma overlying the sella and clivus; and 4. A subdural haematoma around the posterior aspect of the lumbosacral spinal canal.
27. In the opinion of Dr Stachurska, [BB] sustained bilateral intracranial bleeding in multiple locations. Such injuries were consistent with a shaking injury. Dr Stachurska also noted that the complainant had compression fractures of his thoracic vertebrae from T4 - T5. Such fractures are consistent with hyperflexion and hyperextension of the neck which is a common feature of a shaking injury.
28. There was evidence also of an impact injury associated with the right side of the complainant's head. This is consistent with a high energy impact to the right side of the complainant's head. It is the Crown case that this injury occurred on the night of 24 May 2014. The subdural bleeding was not however exclusively located at the impact site. The distribution of the injuries suggest a shearing force causes by shaking. On the Crown case the shaking injuries were caused on 25 May 2014.
29. [CC] initially claimed to medical staff that the injuries were the result of falls on stairs, and in an interview with police on 27 May 2014 [CC] maintained that [BB]'s injuries were the result of falls. This was not true and was contrary to the opinion of Dr Stachurska. [BB] was taken into the care of FACS.
30. [BB] was subsequently placed in the care of KW on 30 May 2014. Over the time he was staying with her and her husband, the complainant disclosed to her that [DD] had hit him on the bottom with a baseball bat. That [AA] would put him in a cold shower and lock him to a seat in the shower. He also said he was made to stand on a fridge and that he fell off and got a sore bump on the back of his head.
31. [EE] made a statement to police on 16 June 2014. [CC]
32. On 16 September 2014 police attended the home where the accused and [DD] were living. [CC] was also staying there in a converted garage. [CC] was arrested. In an interview commencing at approximately midday she told police that she was "sticking to" her account that [BB] had fallen down stairs. She also told police that on or about 24 May 2014 [AA] had told her that she had to leave the house because of [BB]'s behaviour, including swearing. She continued to deny that any person in the house had assaulted [BB]. After the interview she was charged with offences. She then advised police that she wanted to "tell the truth".
33. In a second interview at about 7:30pm on 16 September 2014, [CC] told police that the injuries had occurred over a two week period whilst the child was living at the address in Blackett. She described the incidents alleged in the indictment against each of the accused (other than Count 5). She told police that she had agreed with the two co-accused to maintain that the injuries related to accidental falls. She admitted that she had also hit [BB] with a belt on an occasion when he had a tantrum because he wanted to leave the house and she had told him they could not leave until she had more money. It is anticipated that [CC] will give evidence in accordance with her second interview on 16 September 2014 when called at the accused's trial.
34. On 12 June 2015 [CC] pleaded guilty at Penrith Local Court to offences of exposing a child under 7 to danger of serious injury contrary to s.43 of the Crimes Act; concealing a serious indictable offence contrary to s.316 of the Crimes Act; and assault occasioning actual bodily harm contrary to s.59 of the Crimes Act. She was sentenced at Penrith District Court on 16 December 2015. Her effective overall sentence was 30 months with a non-parole period of 17 months, commencing on 16 September 2014. The sentencing judge allowed a discount of 25% on all sentences for the pleas of guilty, and an additional 20% discount upon the s 43 charge for her assistance to authorities. [DD]
35. On 16 September 2014 [DD] was arrested and interviewed by police. He said that the only injuries he observed on [BB] were those occasioned in ordinary play, and a 'black eye' from [BB] falling down the stairs. He did not see the stair fall but [CC] told him about it. He denied assaulting [BB] in any way or having any knowledge of how the injuries were inflicted upon him.
36. On 23 May 2016 [DD] pleaded guilty in the District Court to six charges with respect to the complainant [BB]. His trial had been listed to commence on 30 May 2016. The charges to which he pleaded guilty were as described above, aside from the charge relating to the Dettol (Count 2 on the present accused's indictment). On 19 October 2016 he was sentenced to an aggregate sentence of 16 years imprisonment with a non-parole period of 12 years to date from 16 September 2014. The indicative sentence for the charge of recklessly inflicting grievous bodily harm in company, relating to the shaking of the child, was six years and 3 months with a non-parole period of 3 years six months. The sentencing judge gave a 12% discount for the offender's plea of guilty which was indicated prior to trial.
37. On 1 November 2016 [DD] spoke with investigating police and told them that he wished to provide a statement and give evidence with respect to the matters to which he had pleaded guilty. He also said that he was intending to seek leave to appeal the severity of his sentence. On 9 November 2016 an electronically recorded statement was taken from [DD] in which he adopted as true the statement of facts upon which he had pleaded guilty, which implicated both himself and the accused [AA] in offences against the complainant in the circumstances alleged by the Crown and said that he would be prepared to give evidence about those events. The accused
38. On 27 May 2014 the accused [AA] was interviewed by police. She said that nothing unusual had happened the previous morning and that [BB] was walking around eating an apple. She said that [CC] was not a particularly good mother but she had never seen her smack [BB]. She said that [BB] had bruising on his face from falling down the stairs on the previous Thursday. She had not seen it happen but when she came home from shopping [CC] had told her it had happened. She said that if she suspected that [CC] was hurting [BB] she would have contacted DOCS herself. She said that when she came home on Sunday night [BB] was standing by the fridge and she assumed in some sort of time out, but she did not pay much attention because she was very tired herself.
39. On 16 September 2014 the accused [AA] was arrested at her home and interviewed in relation to the injuries to the complainant. She said that she recalled that she had suggested to [CC] on Sunday 25 May that she should take [BB] to the doctor because his balance was off, but she had forgotten this when she spoke to police on 27 May but otherwise she maintained her account from that day. Although she said there was a fading bruise on the left side of [BB]'s face which she attributed to the fall down the stairs, she denied seeing the extensive injuries described to her by police on [BB] before he left on Monday 26th May 2014. The accused denied that she had committed any assaults upon [BB] and also stated that she had not seen any other person hurt or harm [BB] while he was living at her house.
40. Police obtained warrants to intercept the telephone numbers associated with [CC], the accused [DD] and the accused [AA] between 11 July 2014 to 23 September 2014. A number of telephone calls were recorded. The accused made no admissions to assaulting [BB] during those calls.

Amendments 06 December 2019 - No amendment made DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 December 2019