Trad v Department of Education

History of the matter

1. This judgment assumes familiarity with my decision in the conviction appeal. [1]
2. In short summary: Kidstart Family Day Care was the 'approved provider' of a 'family day care service'; Ms Trad was the 'nominated supervisor' for Kidstart: National Law, s 5.
3. On 4 March 2019, a family day care educator for Kidstart, Ms Rateau, placed a baby into a bassinet while the baby was wearing a bib; a sheet and pillow were in the bassinet; and the baby was then unsupervised for between 35 and 45 minutes. Each aspect of the conduct was contrary to all safe sleep practices and known by Ms Rateau to be so. Tragically, the baby died.
4. Before the events of 4 March 2019, Ms Trad had made sure Ms Rateau was suitably qualified, and received training in relation to the safe practices of supervising babies in circumstances such as those described. Further, Ms Trad visited the premises on a regular basis, would conduct an inspection, interview Ms Rateau and fill in a form, or forms, noting various matters about her inspection.
5. I found that, given Ms Rateau had full knowledge of the safe sleep practices, her conduct and omissions on the day were the result of momentary inadvertence.
6. Naturally, given her lawful absence from the family day care centre, that is, she was not required to be there, I concluded that Ms Trad had no knowledge of the events that unfolded on 4 March 2019; and indeed I note she had not been on notice of any propensity for Ms Rateua to breach safe sleep practices. I also found that before then, Ms Trad had personally taken all reasonable precautions she was able to take to protect children at Kidstart.
7. I set aside the convictions and, upon request, then gave leave for any application on costs to be made shortly thereafter, as recorded in the Court's record for each offence: Conviction Appeal Upheld I determine the appeal against conviction by setting aside the conviction imposed by the Local Court (s 20(1)(a) Crimes (Appeal and Review) Act). I quash the Orders of the Local Court, including the findings of guilty, the convictions, and fines. If there is to be a costs in criminal application [sic] it must be made before 1 December 2022.
8. A copy of these Orders was given to each of the parties on 19 March 2023 and marked "MFI 1".
9. Noting the time limit in s 5B of the Criminal Appeal Act, it is pertinent to set out the procedural history of what followed, which draws from Exhibit "A", which was the affidavit of the Department's solicitor, Mr Brett Hearnden, affirmed 18 May 2023.

Procedural history

1. On 30 November 2022, Ms Trad's solicitors emailed my former Associate and advised that an application for costs was to be made. [2] My former Associate wrote to the parties proposing a date for the hearing of the costs application in early March 2023. [3]
2. Between December 2022 and February 2023, the Department considered, and ultimately commenced, judicial review proceedings in the Court of Appeal. [4] I received a copy of the Summons from the Court of Appeal on 10 February 2023.
3. On 13 April 2023, the Department's solicitors advised Ms Trad of its intention to request this Court state a case to the Court of Criminal Appeal. [5]
4. On 14 April 2023, notwithstanding Ms Trad's request on the day prior for a week to consider its position, the Department's solicitors emailed my former Associate a copy of its proposed stated case.
5. I pause here to note that despite the email having been sent to my former Associate, the Court did not receive a copy of the Department's proposed stated case until 2 May 2023, when a copy was emailed to my current Associate, who has held the role since 31 March 2023; from which date his email address could be found at the publicly available list of District Court Judges' contact details.
6. On 2 May 2023, after Ms Trad's solicitor spoke to my Associate by telephone, apparently chasing up the emails, the parties were informed the previous email correspondence with the court had not been received. [6]
7. On 3 May 2023, having reviewed the proposed stated case, my Associate emailed the parties setting out some queries and inviting written submissions.
8. Counsel for the Department provided submissions on 11 May 2023 (CWS). Counsel for Ms Trad provided written submission on 15 May 2023 (DWS). The Department provided submissions in reply dated 19 May 2023 (CWS-R).
9. At that hearing, Mr Emmett SC read (I note without objection only for the purposes of that hearing), the affidavit of his instructing solicitor Mr Brett Hearnden affirmed 18 May 2023, which I marked "Exhibit A".

The legal principles in a stated case

1. The Department's request is brought under s 5B of the Criminal Appeal Act 1912 (NSW), which states: (1) A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit. (2) At the request of a person who was a party to appeal proceedings referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow. (3) The Court of Criminal Appeal may, in connection with the determination of a question of law in the circumstances referred to in subsection (2), quash any acquittal, conviction or sentence of the District Court on the appeal to the District Court.
2. Senior counsel for both parties provided several authorities relevant to s 5B.
3. The history of s 5B of the Criminal Appeal Act was recently summarised in Forrest v Director of Public Prosecutions (NSW) (2020) 286 A Crim R 191 (Forrest). Relevant for present purposes, Basten JA (with whom Leeming JA and McCallum JA agreed), highlighted the effect of amendments to s 5B of the Criminal Appeal Act in 1999 to precedent beforehand, noting at [43]: Section 5B is still not in form the conferral on a dissatisfied litigant of a right of appeal on a question of law… When a request is made at a time which renders it impossible for the judge to comply with the temporal limitation (that is after the 28 day period has elapsed), the existence of the power to state a case will be contingent upon an exercise of discretion by the Court of Criminal Appeal to extend time, as to which the judge can only speculate.
4. Ms Trad opposes the Departments' request.
5. At CWS, [7] the Department referred me to Gibson v Director of Public Prosecutions (NSW) (No 2) (2021) 105 NSWLR 434, where at [40]-[42] Basten JA (with Meagher JA agreeing) drew together principles relevant to s 5B: 1. Section 5B confers a power on a District Court judge determining an appeal from the Local Court in a criminal matter to submit a question of law "arising on" the appeal to the Court of Criminal Appeal. 2. A party to the District Court appeal may "request" the judge to submit a question of law: s 5B(2). If that step is taken after final orders have been made in the District Court, the Court of Criminal Appeal may quash the order of the District Court: s 5B(3). 3. If the District Court exercises the power of its own motion under subs (1), that step will generally be taken before any final order is made. If the submission of the question occurs pursuant to a request under subs (2), the question must be submitted either before, or within 28 days after, the final order. 4. When a request is made in accordance with subs (2) the judge has an obligation to consider the request: that exercise will involve the judge forming a state of satisfaction as to: (a) whether at least one of any proposed questions is a "question of law"; (b) whether the question arose on the appeal, in the sense that the answer to the question was capable of affecting the outcome; (c) whether the question was one as to which there was a real doubt as to the correct answer; and (d) if the request were made near or after the expiry of the 28 day period, so that the party seeking the submission would need to obtain an extension of time from the Court of Criminal Appeal, whether there was a reasonable prospect of such an extension being granted. 5. If the District Court judge were not satisfied as to any one or more of the factors set out in (4), the judge would be justified in refusing to comply with the request. If generally satisfied in relation to each matter, the power to submit the question or questions will be engaged: it will remain a discretionary decision for the judge, although one which must be exercised judicially.
6. At DWS, [1] counsel for Ms Trad outlined the points of opposition to the request for a stated case. They were: 1. the question of law sought to be stated "did not arise" on the appeal; 2. The questions posed are not questions of law; 3. This application is an abuse of process; 4. The request is out of time.
7. At the hearing on 19 May 2023, the 'abuse of process' issue was put to one side given the undertaking by the Department through its senior counsel to seek to withdraw or at least not press the jurisdiction appeal. If it matters, I can add that I was of the view there was much to be said in support of Ms Trad's submission on abuse of process: see Sasterawan v Morris (2007) 69 NSWLR 547 at [8].
8. In accordance with the principles in Gibson, I consider in turn: 1. is the proposed question a "question of law"? 2. did the question arise on the appeal insofar as it was capable of affecting the outcome? 3. was there a real doubt as to the correct answer to the question? 4. is there a reasonable prospect the Court of Criminal Appeal will grant an extension?

(a) is the proposed question a 'question of law'?

1. The draft Amended Stated Case at para [13] states: Does s 165(2) of the National Law impose criminal liability on a nominated supervisor of an education and care service if it is proved that a child being educated and cared for by the service was not adequately supervised at all times that the child was in the care of the service: (a) on the basis that criminal liability arises if the nominated supervisor failed to ensure (in the sense of guarantee or make certain) that the child was adequately supervised at all times the child was in the care of the service; or alternatively (b) only if the prosecution establishes that the failure was deliberate, or that there were steps that the nominated supervisor was in a position to take but failed to take in the particular circumstances of the case?
2. Ms Trad submitted the proposed question was not a question of law; that it is at best a question of mixed law and fact as the question does involve a question of fact given the offence provision itself concerns whether 'adequate supervision' was provided. However, the question is conditioned upon that fact being proved.
3. Ms Trad further submitted that the question of whether the obligation imposed by s 165(2) is met by the existence of any one set of facts is not a question of law. Again, she submitted it is a question of fact or mixed fact and law at best.
4. Nevertheless, following discussions between bench and bar I understood the Department was content for me to put the question a little differently given their real concern was in fact as set out at paragraph [20] of CWS, which stated: The liability for breach is absolute and there is no "due diligence" defence nor is it a defence to show that the breach was "due to the act or default of another person": ABC Developmental Learning Centres Pty Ltd v Wallace (2007) VR 409; [2007] VSCA 138 at 14.
5. I note that case was not brought to my attention by the Department on the appeal.

(b) did the question arise on the appeal insofar as it was capable of affecting the outcome?

1. Here, Ms Trad submitted that "the question of law the [Department] in fact wants the Court of Appeal to determine is whether an offence under s165(2) is an absolute liability offence." So much can be accepted having regard to the Department's submission at CWS [20].
2. She then submitted that s 5B provides "that a Judge…may submit any question of law arising on any appeal". It follows that the question of law to be submitted has to arise on the appeal. And that even if the original question posed in the CWS can be said to raise a question of law, and only a question of law (which is not conceded and is denied by Ms Trad), it does not contain questions of law which arose on the appeal as the proposed question, or any question concerning absolute liability, was not capable of affecting the outcome of the conviction appeal, given that was simply not in issue.
3. Ms Trad referred to Sasterawan v Morris [2008] NSWCA 70 where Tobias JA (Beazley JA and McClellan CJ at CL agreeing), stated at [99]: "It seems to me, therefore, that the only questions of law that may be submitted under the combined operation of ss 5B(1) and (2) for determination by the Court of Criminal Appeal are those which arise anterior to the disposal of the appeal proceedings. Questions of law that arise as a consequence of that disposal are not, in my view, amenable to the stated case procedure."
4. Ms Trad submitted that this decision would appear to be against the Department on this application given the question of law the Department in fact wants the Court of Appeal to determine is whether an offence under s165(2) an absolute liability offence and that was not in issue.
5. Further, not only did the Department not contend that the offence under s 165(2) was an absolute liability offence, they did not raise the Victorian Court of Appeal decision in ABC Developmental Learning Centres Pty Ltd v Wallace (2007) VR 409 in support of this contention. Rather, it was submitted, that by conceding that there was still room for the honest and reasonable mistake defence, the Department positively asserted that the offence was one of strict liability.
6. The Department responded that the question of law does arise, "in the sense that it would be determinative of the appeal" and that is so regardless of the 'concession' that that the provision allowed a Proudman v Dayman [7] defence. That arose when I queried Mr Averre, who appeared before me on the appeal in November, on how the Department put its case on liability.
7. Further, the Department noted that counsel in his then written submissions did state, at [38], that 'ensure' in each of the three offence provisions, means guarantee or make certain.
8. The Department noted that at page 6 of my judgment, when considering s165(2) in circumstances where it was a family day care centre and the nominated supervisor was not required to be present under s 162(1), I was engaging in statutory construction when I interpreted the relevant obligation "to mean that a nominated supervisor must ensure that those doing the supervision (i.e. the actual family day care providers present), are doing so to the best of their ability and they would do so through training and the like and having confidence in their qualifications and so on."
9. Ultimately, the Department submitted that "being a matter of statutory interpretation it is a pure question of law."
10. In considering this aspect, I note that in Sasterawan v Morris [2008] NCWSCA 70, the immediately preceding paragraphs to those relied upon by Ms Trad are: [97] Although s 5B(2) authorises a party to appeal proceedings in the District Court to request a question of law to be submitted to the Court of Criminal Appeal for determination even though the appeal proceedings have been disposed of (as in this case), nevertheless the only questions of law which may be so submitted are those which arose on the appeal itself. This is because any question of law which may be submitted as a consequence of s 5B(2) can only be submitted under s 5B(1) which provides for a judge of the District Court to submit "any question of law arising on any appeal" to the Court of Criminal Appeal. Further, s 5B(2) itself refers to a question of law being submitted under subsection (1) to the Court of Criminal Appeal for determination, "even though the appeal proceedings during which the question arose have been disposed of" (emphasis added in original). [98] The same point was made by Basten JA in the Court of Criminal Appeal at [24] where he observed that there was serious doubt as to whether any question as to the jurisdiction of either the Local or District Courts "arose" in the appeal proceedings before the District Court. This was because neither court had been required to rule on the challenge to jurisdiction which was sought to be raised in the stated case.
11. The circumstances there under consideration were that until the primary judge delivered his reasons, no question of law or other controversy arose on or during the appeal with respect to either the elements of the relevant offence which the Prosecution was required to prove or as to whether any evidentiary onus lay upon the claimant - see [100].
12. Here, of course, I have given judgment and in circumstances where the question of absolute liability was not addressed in that judgment as it was not raised in argument.
13. In Sasterawan v Morris [2007] NSWCCA 185, at [8], in the context of a potential abuse of process in seeking to maintain proceedings in a stated case in the Court of Criminal Appeal and, contemporaneously, judicial review in the Court of Appeal, Basten JA referenced Spigelman CJ noting in Swansson v Regina; Henry v Regina (2007) 69 NSWLR 406 at [45], that it is a purpose of the Criminal Appeal Act "to ensure that this Court will hear all appeals in which errors of laws are alleged to have occurred in the course of criminal proceedings".
14. While not strictly applicable to the stated case process and, in particular, the Gibson gateway, it does point the way forward when dealing with this aspect of Gibson. That is, given I was relevantly engaged in statutory construction and, if in error there, noting the written submissions did raise a different meaning which seems to accord with that at paragraph [19] of ABC Developmental Learning, and which is said to be a case of absolute liability, it would appear the Court of Criminal Appeal is best placed to determine whether a question of law concerning absolute liability is a question of law arising on the appeal.
15. As such, I am, at least, not dissatisfied in relation to this aspect.

(c) is there a real doubt as to the correct answer to the question?

1. In my view, given similar, if not identical legislation, was arguably found by an intermediate court of appeal to impose an absolute liability (albeit on a company rather than, as here, an individual), the proper construction and scope of s165(2), or at least my approach to it, may be characterised as being in doubt.

(d) is there a reasonable prospect the Court of Criminal Appeal will grant an extension?

1. There was debate upon whether the 28 days given under subsection 5B(2) had begun to run, noting the question of costs of the appeal was still outstanding.
2. Ms Trad made a forceful submission that the delay was unexplained.
3. As I noted during submissions, in reading between the lines of Mr Hearnden's helpful chronology, it seems that when senior counsel came into the matter it was quickly determined that the stated case course was the preferred option and indeed the Court of Appeal was informed of that on the first mention of the jurisdiction appeal and that Summons has since lain dormant.
4. In my view, and analogous to the circumstances governing stated cases before the amendments in 1998 to allow time for a stated case after judgment on the appeal, I was relevantly functus after giving judgment on 9 November 2022. The Orders made that day make that plain, at least in respect of the appeal. The question of costs, for Ms Trad, only arose after that judgment.
5. If that is right, then the time for me to state a case is long past and the question then is whether it is within such longer period as the Court of Criminal Appeal may allow - s 5B(2). As noted above in Gibson that is addressed by whether there is a reasonable prospect of such an extension being granted.
6. I do note that in Sasterawan v Morris [2007] NSWCCA 185, Basten JA stated at [7]: Generally speaking, this Court would be reluctant to grant an extension of time, especially where the first attempt to formulate the specific questions of law to be determined occurred many months after the delivery of judgment.
7. In the circumstances here, given an intermediate court of appeal has approached the issue in one way, there are similar offence provisions in the legislation under review and indeed in other regulatory spheres and some of the delay was inadvertent when the request for the stated case went to the wrong email address and it is for the Court of Criminal Appeal to determine leave, there may, in my view, be reasonable prospects of such an extension being granted.

Conclusion

1. I will state a case to the Court of Criminal Appeal pursuant to s5B after hearing the parties on its form.
2. That is so, as I am generally satisfied in relation to each matter, the power to submit the question or questions is therefore engaged, and in my discretion, determine that the interests of justice favour a stated case.

The form of the stated case

1. Set out in Annexure A to these reasons is the suggested settled form of the stated case in mark up and in Annexure B as accepted.
2. My preference, given there is already substantial delay in this matter, is for the parties to send my associate any agreement or written submissions on the form of the stated case and I will determine any question in chambers at the first available opportunity.

Endnotes

1. R v Trad (District Court (NSW), McHugh SC DCJ, 9 November 2022, unrep).
2. Affidavit of Brett Hearnden affirmed 18 May 2023, Annexure "B".
3. Affidavit of Brett Hearnden affirmed 18 May 2023, Annexure "B".
4. Affidavit of Brett Hearnden affirmed 18 May 2023, paras [15]-[18].
5. Affidavit of Brett Hearnden affirmed 18 May 2023, para [21], Annexure "E".
6. Affidavit of Brett Hearnden affirmed 18 May 2023, para [25], Annexure "I".
7. (1941) 67 CLR 536 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: 24 May 2023