Subpoenas WIT25/382, WIT25/383, WIT25/384 and WIT25/386 are set aside.

CRIMINAL LAW - APPLICATION IN PROCEEDING - SUBPOENA TO CHILD WITNESSES - application to set aside subpoenas to give evidence - balance between prosecutorial discretion and Court's implied power to control its own proceedings - likelihood of psychological harm to vulnerable children a basis to set aside a subpoena

Crimes Act 1900 (ACT), s 26(2)

Children and Young People Act 2008 (ACT), ss 7, 349

Human Rights Act 2004 (ACT), ss 11(2), 30

Legislation Act 2001 (ACT), s 139

Evidence Act 2011 (ACT), ss 18, 19, 65, 66A, 126B, 131A(2)(a)

Magistrates Court Act 1930 (ACT), s 64

Castrucci v ACT Electricity Authority [1990] ACTR 1

Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

Canham v ACT Magistrates Court and Jabs [2014] ACTSC 14

Crimmins v Pearson [2016] ACTSC 195

Williams v Spautz [1992] HCA 34

Levinge v Director of Custodial Services (1987) 9 NSWLR 546

Marshall v R [2023] ACTCA 11

R v Vilayur (No 2) [2024] ACTSC 2

CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33

Pesec v Consolidated Builders Ltd [2022] ACTSC 241

R v YL [2004] ACTSC 115

R v Malone (No. 3) [2022] ACTSC 74

Director-General of the Community Services Directorate (Applicant)

1. Subpoenas were issued at the request of the Director of Public Prosecution (DPP) for four children (whose names have been anonymised to protect their identities), Charlotte aged 11, Cynthia aged 10, Marcus aged 9 and Aaron aged 4 (the children), which require them to attend to give evidence in a prosecution against their father, the Defendant. The Defendant is charged, pursuant to s 26(2) of the Crimes Act 1900 (ACT), with three counts of common assault, aggravated by being in the family violence context, against his son Marcus.
2. The four children are currently subject to interim care and protection orders pursuant to which the Director-General of the Community Services Directorate (DG) has parental responsibility. There are two other members of this sibship who are not directly involved in these proceedings.
3. By Application in Proceeding filed on 14 April 2025, the DG applies to have the subpoenas set aside pursuant to rule 6604 of the Court Procedure Rules 2006 (ACT) (CPR), which provides, relevantly:

(1) On the application of a party or someone else having a sufficient interest, the Court may set aside a subpoena completely or partly, or grant other relief in relation to it.

1. The parties concede, and I find, that the DG has a sufficient interest in respect to the subpoenas, having regard to the parental authority she currently holds in respect to the children.
2. The grounds relied upon by the DG in her application are that it is not in the interests of justice, it is not within community expectations, and it is contrary to the best interests of the children to require them to give evidence against their father, as to do so would cause them harm. In submissions, this was condensed to the concept that the subpoenas were oppressive.
3. The Defendant in the criminal prosecution supports the application.
4. The prosecution opposes the application.

1. The children were interviewed by police in light of a disclosure made by Marcus. I was invited to have regard to both the statement of alleged facts and the records of interview. The prosecution case relies on Marcus' complaint in interview to the effect that the Defendant assaulted him by kicking him to the ribs and slapping him in the face, arms and legs repeatedly on a Friday in September 2024. Aaron's evidence in interview corroborates the alleged kicking. Charlotte and Cynthia's evidence provides no direct support for the allegation. The children's evidence taken wholistically is potentially both inculpatory and exculpatory.
2. I was advised by Mr Howe that the Director had considered the public interest in opposing the DG's application.

1. The evidence relied upon by the DG to establish that the children would suffer harm if required to attend consists of the following:

(a) Affidavits of Children, Youth and Families (CYF) case workers Emma Hope (17/9/24), Lewis Kuskie (20/2/25 and 28/3/25) and Andrew Stead (14/4/25)

(b) Expert reports of Professor Louise Newman, psychiatrist (10/10/21) (annexed to Emma Hope's affidavit) and Ms Katie Martens, forensic psychologist (3/2/25).

1. The case worker affidavits address a concerning level of physical violence in the family home, alleged to emanate from both parents, on a background of their own traumatic experiences. This is why the children were removed from their parents' care.
2. Professor Newman conducted a family assessment for CYF in which she interviewed the parents separately, spoke with the children and then observed each parent with their children. She identified that the Defendant suffers post-traumatic stress disorder, mood disorder and depression. She recorded that he abused alcohol and engaged in both physical violence and coercive control. She opined: "[the Defendant] remains a man at high risk of both harm to others and harm to himself, given the periods where he experiences extreme distress. Of concern, he has been unable to regulate his behaviour, which is well documented, for some time.... He has ongoing difficulties in emotional regulation and management of behavioural impulses. This significantly limits his capacity to be a safe and predictable attachment figure and parent for the children."
3. Professor Newman also noted that Mr Jones has experienced suicidal ideation.
4. As to the children, Professor Newman observed: "[i]n summary, I am of the view that the multiple traumatic experiences of these children, combined with their neglect and long duration of exposure to disruptive and violent behaviour from their father, as well as physical abuse in some cases from their mother, have contributed in a major way to emotional difficulties, particularly anxiety and some behavioural disturbance, largely in distractibility and avoidance of the parents."
5. Ms Martens conducted a psychological assessment of the children in November 2024. She observed that the children, particularly Marcus and Cynthia, had shown a deterioration in behaviours since being in care. She noted that all of the children have experienced developmental trauma.
6. Lewis Kuskie, who holds a Bachelor of Psychology (Honours) and has four years of experience in child protection work, is the current case worker for these children. Mr Kuskie, in his affidavit of 28 March 2025, expressed concern for the children's emotional regulation and any future relationship with their parents if required to engage in the criminal proceedings. He fears this may be aggravated for Marcus, especially in light of his self-blaming. On being informed that his father had been charged in February of this year with an assault on him, Marcus had an immediate emotional outburst.
7. The affidavit of Andrew Stead, Operations Manager at CYF, summarises some of the challenges the children have faced whilst in care, noting in particular that the three older children reacted negatively to the return to their mother's care of the two younger children. This return was staged over 3 months. At the first stage, the children became violent and Cynthia, suicidal. The second stage saw a further eruption of violence from Marcus, whilst Charlotte "shut down". At the third stage of the restoration of the two younger children, Charlotte and Cynthia, and the children's mother, blamed Marcus for the family being separated. He attacked Charlotte in response to being blamed by her. The police were called. Marcus nonetheless blames himself for the removal of the children from their parents' care.
8. Mr Stead summarises the DG's concerns that the children will blame themselves or each other for the result of the hearing, will experience "anxiety, stress, negative emotions and/or dysregulation" as a result of giving evidence, may experience suicidal ideation, will physically hurt themselves or each other in response to negative feelings triggered by giving evidence, and will be afraid of retaliation by the Defendant. He is also concerned that the restoration plan will be slowed as a result of behavioural regression caused by the children being required to give evidence and that they will be fearful of upsetting, angering or disappointing their mother by giving evidence. Further, giving evidence against their father will remove any prospect of repairing the children's relationships with him in the future.
9. Mr Stead notes that the mother has expressed support for the DG's application.

1. Mr Whitfield, representing the DG, submitted that the Court could infer from the evidence that the children were vulnerable and would suffer further harm if required to attend to give evidence.
2. The community expectation was that the Court would act in the best interests of the children, which could be determined having regard to the Children and Young People Act 2008 (ACT), s 7 (objects) and s 349 (best interests of the child).
3. The subpoenas are oppressive in the ordinary meaning of that word as detailed in the Oxford English Dictionary, including cruel and unfair treatment of people. Not setting aside the subpoenas is cruel because it would cause further trauma to already vulnerable children.
4. Even if the children did not attend to give evidence, the prosecution could continue relying on facilitative provisions of the Evidence Act 2011 (ACT) in respect to hearsay evidence where the maker of a statement (here in interview) was "unavailable".

1. Mr Edmonds for the Defendant joined with the DG's submissions, although noted that application of the Evidence Act 2011 (ACT) provisions referred to by the DG would be opposed. He conceded that without the children available to give evidence in person, the prosecution was likely to fail.
2. Mr Edmonds submitted that the power to set aside a subpoena extends to a subpoena to attend to give evidence as well as a subpoena to produce documents.
3. In respect to the issue of harm to the children, he submitted that the Court could infer that the children were at an important juncture and that their mental health was fragile; further, that the Court could infer an "higher than usual" risk of harm without specific expert evidence as to the effect of being required to attend Court.
4. Mr Edmonds submitted that in exercising the discretion pursuant to rule 6604 of the CPR's, the Court should be guided by a consideration of the following:

(1) Section 11(2) of the Human Rights Act 2004 (ACT), which provides, "[e]very child has the right to the protection needed by the child because of being a child, without distinction or discrimination of any kind";

(2) Section 30 of the Human Rights Act 2004 (ACT), which requires legislation to be interpreted consistently with human rights;

(3) Section 139 of the Legislation Act 2001 (ACT), which requires the interpretation of legislation which best achieves the purpose of an Act to be preferred, and;

(4) "Best interests" considerations pursuant to the Children and Young People Act 2008 (ACT).

1. Whilst acknowledging the breadth of prosecutorial discretion, and that it must be rare to intervene, Mr Edmonds submitted that whilst this Court has no inherent parens patriae jurisdiction, the welfare of the children is a consideration as part of the public interest. He submitted that failure to set aside the subpoenas would be oppressive to the children.
2. He further submitted that the prosecution case was inherently weak, pointing to the contradiction between the two younger against the older children as to whether anything happened at all and observing that the available medical evidence did not support the mechanism of assault alleged, that is of a full grown adult male kicking and repeatedly slapping a child yet leaving no mark or injury. Therefore, even though there may be difficulty for the prosecution proceeding with the matter if the subpoenas were set aside, he submitted there was a low public interest in the matter proceeding.

1. The prosecution submits that acceding to the application would be a substantial departure from fundamental criminal justice principles relating to prosecutorial discretion. In circumstances where the witnesses are patently relevant, the Court has no basis to intervene in exercise of this discretion.
2. The prosecution further submit that the absence of an analogous case reflects the position that the remedy is not available in relation to the exercise by the DPP of her discretion to call witnesses. The Court's discretion is more appropriately directed to existing categories such as those in which there is no legitimate forensic purpose to the subpoena, or matters in which the effect of the subpoena is oppressive.
3. That said, Mr Howe conceded in an exchange during submissions, that were the recipient of a subpoena to attend to give evidence suffering a terminal illness such that they may soon die, the requirement to attend under compulsion may be oppressive and a basis to set the subpoena aside.

1. It is clear that the Court is empowered to set aside a subpoena to attend to give evidence in appropriate circumstances (see Castrucci v ACT Electricity Authority [1990] ACTR 1 (Castrucci).

1. The issue of a subpoena for a non-legitimate purpose may be an abuse of process. Although dealing with the question of a subpoena to produce documents, Bell P in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [60], observed:

There is a danger in using the language of "tests" for the setting aside of subpoenas. Such terminology should, in my opinion, be eschewed. It is sufficient to observe that subpoenas will and should be set aside when they can be seen to involve or amount to an abuse of process as part of the Court's general power to regulate and protect its own processes. Such a power is not to be restricted to defined and closed categories.

1. The Magistrates Court has implied power to regulate its own processes so as to prevent an abuse of process (see Canham v ACT Magistrates Court and Jabs [2014] ACTSC 14 at [27] - [30]; Crimmins v Pearson [2016] ACTSC 195 at [40]).
2. The policy underpinnings in respect to abuse of process considerations are detailed in the majority decision in Williams v Spautz [1992] HCA 34 at [20]:

As Lord Scarman said in Reg. v Sang [1979] UKHL 3; (1980) AC 402, at 455, every Court is "in duty bound to protect itself" against an abuse of its process. In this respect there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings. Richardson J referred to them in Moevao v Department of Labour (1980) 1 NZLR 464, at 481 in a passage which Mason CJ quoted in Jago (1989) 168 CLR, at 30. The first is that the public interest in the administration of justice requires that the Court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the Court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the Court's processes may lend themselves to oppression and injustice.

1. In Levinge v Director of Custodial Services (1987) 9 NSWLR 546 at 565, McHugh JA stated:

Conduct which might be regarded as constituting an abuse of process in respect of a comparatively minor charge may not have the same character in respect of a serious matter.

1. A finding that conduct may result in an abuse of process does not necessitate a finding that the conduct is motivated by mala fides; it is the result with which the Court is concerned.

1. Ordinarily, as restated in Marshall v R [2023] ACTCA 11 at [126]:

...The prosecutor alone bears responsibility for deciding whether a person will be called as a witness...

1. McWilliam J in R v Vilayur (No 2) [2024] ACTSC 2 at [18] observed:

... The principle operates as a broader proposition, in that the court generally does not scrutinise how the prosecuting authorities investigate or conduct the case, such as by ordering further inquiries to be conducted about a particular topic or that further witnesses be called: see R v Apostolides [1984] HCA 38; (1984) 154 CLR 563 at 576. The court will intervene only in limited circumstances, such as to ensure that a person is not tried unfairly and that its processes are not abused.

1. Rule 6604 vests a broad discretion in the Court to set aside a subpoena either partly or entirely or to grant other relief in respect to it. The discretion, I am satisfied, is intentionally broad because the range of circumstances in which it may be appropriate to set aside a subpoena are widely variable. In that sense, whilst the Court may be guided by existing categories of cases in which subpoenas have been set aside, such categories are necessarily not exclusive (see CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145).
2. Whilst a review of case law confirms that the vast majority of matters in which CPR 6604, or similar provisions, have been successfully invoked fall within those categories identified in Meagher, Flint and Refshauge J's commentary to the Rule, namely legitimate forensic purpose, relevance, privilege or oppression, there are exceptions.

1. The concept of 'oppression' is not narrowly defined.
2. In determining whether compliance with a subpoena would be oppressive, the Court may have regard to the concept of proportionality, that is the burden the subpoena places on the recipient.
3. Whilst this is more commonly considered in the context of subpoenas to produce documents (see Pesec v Consolidated Builders Ltd [2022] ACTSC 241), the approach has been extended to subpoenas to attend to give evidence (see Castrucci).
4. I have been unable to identify a reported matter in which a subpoena to attend for a relevant witness has been set aside in a criminal proceeding. However, as the prosecutor fairly conceded, such a circumstance may be envisaged.

1. I have been unable to identify any decision which addresses directly a situation in which a subpoena to attend to give evidence had been set aside on the grounds that there is no utility in it because it cannot, or will not, ultimately be enforced or enforceable due to being oppressive.
2. However, in a somewhat analogous situation in R v YL [2004] ACTSC 115, Crispin J dealt with an application to compel a 7-year-old child to give evidence in criminal proceedings against his step-mother. The child was a compellable witness. The Court found that there was a significant risk of harm to the child if he was required to give evidence. His Honour concluded that the Court retained a discretion in relation to its exercise of coercive powers and informed the Crown that he would not make any order that would require the child to be brought to Court against his will, even against a background of compellability. Whilst concluding that he was bound to apply the compellability provisions, His Honour nonetheless noted at [21]:

However, due recognition of the importance of these considerations need not be accompanied by a complete disregard for the risk that curial processes intended to protect spouses or children may themselves inflict further and perhaps quite unwarranted harm.

... a conclusion that the child was a competent and compellable witness did not require a further conclusion that the Court had no discretion as to whether to apply some or all of the coercive measures available to compel witnesses to give evidence...Whilst it will normally be appropriate for the Court to take such measures as may be necessary to ensure the attendance of a compellable but reluctant witness, such remedies are discretionary and the Court may decline to do so when satisfied that the interests of justice require such a course.... I see no reason to doubt that the Court has power to refuse to take coercive measures against a child in order to protect him from the risk of psychological harm to which he is vulnerable by reason of his age and position as a child in a family... Whilst I accepted that the child fell within the class of witnesses amenable to compulsion, it would, in my opinion, have been inappropriate to have applied any of these coercive measures to him. A seven year old boy could not be sensibly threatened with contempt proceedings and, save perhaps in the most compelling circumstances, such a child should clearly not be arrested, forced into court or intimidated in order to require him to give evidence when he might suffer significant psychological harm as a consequence of doing so. Children of that age should be protected by the law; not harmed by it.

1. In R v Malone (No. 3) [2022] ACTSC 74, the accused person had sought documents held by the Victims of Crime Commissioner which were potentially relevant to the complainant's credibility. The Commissioner claimed that the documents contained a protected confidence as defined in s 126B of the Evidence Act 2011 (ACT) (the Evidence Act) and made an application to set aside a subpoena as envisaged by s 131A(2)(a) of the Evidence Act. Elkaim J found the person confiding the information would suffer harm if her ability to "frankly express her emotions and concerns as a victim to the Commission" was constrained for fear of having the record thereof disclosed under subpoena.
2. It follows from His Honour's decision that likelihood of psychological harm may be a basis to set aside a subpoena.

1. By way of general observation, I note that because of the familial relationship between the children subject to the subpoenas and the Defendant, at hearing the Court would ordinarily have a discretion, if objection were taken, as to whether the children should be compelled to give evidence pursuant to s 18 of the Evidence Act. However, the allegations are such that s 19 of the Evidence Act is enlivened, rendering the children compellable.
2. Submissions were made by the DG and Defendant to the effect that the children's evidence already captured in police interviews, may be admissible under the Evidence Act even if the children are not required to answer subpoenas to attend to give further evidence, such as under ss 65 "maker unavailable", and 66A "contemporaneous statements". The outcome of any such application is speculative.
3. Similarly, assessments by the parties as to the strength of the prosecution case, in circumstances where it cannot be said to be "impossibly weak" are not a factor I have taken into account.
4. The allegations against the Defendant are of three common assaults on one occasion in a course of conduct but as alleged, are serious examples of such assaults against a young child, particularly the allegation of kicks to the ribs. It is relevant that they arise in the context of a history of exposure to violence based on evidence from the DG. It may be inferred that the child would suffer psychological harm from such assaults and, in any case, is in need of protection. I observe also that if convicted, issues of general and specific deterrence would loom large in any sentencing exercise, matters which are very much in the public interest. In short, there is a compelling public interest in prosecuting matters of familial violence against vulnerable children and, as alleged, this is such a matter.
5. The DG brought this application on relatively short notice and relies on expert evidence which has not addressed directly whether, and in what way, the children, either individually or collectively, are likely to be harmed if required to attend Court under subpoena. Nonetheless, there is expert evidence of the children's mental state and vulnerabilities before me.
6. The DG supports its application with opinions expressed by Mr Kuskie, the current case worker and Mr Stead, the Operations Manager at CYF. These are not presented as "expert opinion" but there was no challenge to the opinions they expressed, which I am satisfied reflect their professional opinions based upon knowledge of the children through their specialised employment. I accept these opinions are well-founded.
7. I am able to draw a number of inferences from the available evidence:

(1) Each of the subpoenaed children are extremely vulnerable as a result of the developmental trauma they have experienced, in particular early and regular exposure to family violence;

(2) Division of the family is a source of significant distress to each of the children;

(3) Each child blames either themselves or a sibling for that family situation;

(4) The children are emotionally vulnerable and labile; they respond with anger, aggression and/or sadness to difficult situations;

(5) Significant efforts are being made to stabilise the children's situation and support their mental and emotional stability;

(6) There is a likelihood that the trauma of giving evidence per se in these proceedings will add to the psychological harm already experienced by these children;

(7) In responding to this stressor, there is the potential of physical harm to the children from (i) themselves; (ii) each other;

(8) There is a significant risk that one or both parents may take retributive action as a result of the children giving evidence in these proceedings, either as an intended form of discipline or in response to their own emotional instability;

(9) The children's future relationships with their parents are important in assisting them to address their trauma;

(10) The children's relationships with each other are particularly important given the disconnection with their parents; and

(11) Giving evidence in these proceedings has the potential to further damage the children's relationships with each other as well as with their parents.

1. No one involved in the criminal justice system could be blind to the fact that giving evidence in Court is inherently stressful; more so when it is under compulsion and when the witness is vulnerable.
2. I conclude that there is a real likelihood of harm to these children, beyond that of child witnesses generally, if required to attend to give evidence against their father in response to the subpoenas.
3. If the subpoenas are not set aside, it is likely that coercive measures would be required to effect their attendance. The Court may take into account whether such measures are likely to have any utility.
4. The Court could order that the DG arrange the children's attendance at Court, however, when the DG has determined that it is not in the children's best interests to do so, requiring the DG to act contrary to her legislative mandate may well, reasonably, be resisted by legal means.
5. Alternatively, the Court could issue a warrant for the children's arrest by a police officer pursuant to s 64 of the Magistrates Court Act 1930 (ACT). However, having regard to s 64(2)(f), which requires a consideration of "the impact of using a warrant for the arrest of the person", and noting the additional trauma that such action is likely to occasion on these already traumatised children, such a course is highly unlikely.
6. I also echo the sentiments of Crispin J in R v YL [2004] ACTSC 115 at [33], namely, that "[c]hildren of that age should be protected by the law; not harmed by it".
7. On a close consideration of the competing considerations in this application, I conclude that this is one of the very rare occasions upon which it is incumbent on the Court to make a decision which does impinge upon prosecutorial discretion.

1. Subpoenas WIT25/382, WIT25/383, WIT25/384 and WIT25/386 are set aside.

I certify that the preceding sixty-six [66] numbered paragraphs are a true copy of the Reasons for Decision of her Honour Chief Magistrate Walker.