Lacey (a pseudonym) v Attorney General for New South Wales [2021] NSWCA 27

Lacey (a pseudonym) v Attorney General for New South Wales [2021] NSWCA 27 · Read the judgment on AustLII

Catchwords: Local Court and Children’s Court – Power to control proceedings – hearing of matter by magistrate of a particular gender

In this decision the Court of Appeal has held that the Local Court (and so the Children’s Court) has power to impose a conditional permanent stay of proceedings – potentially including, at least in these circumstances, the power to order that the matter must be stayed unless heard by a female magistrate.

The applicant is a young Aboriginal woman, who was 15 years old when the alleged offences happened. The matter is before the Children’s Court – relevantly, in a rural/regional area, where only one Magistrate sits. The prosecution case includes footage of a strip search, said to involve segments where the applicant’s chest and buttocks were exposed. Part of the applicant’s case is that at least some of the video of the strip search needs to be played, and the search was illegal. There was evidence before the court that in Aboriginal cultures, the showing of a woman’s sensitive parts is considered women’s business; that women’s business must not be observed by males; and that the division of men’s and women’s business has been practiced for thousands of years. The applicant told a Field Officer that if the matter could not be heard by a female magistrate, then she did not want to defend the matter. In the Children’s Court she sought orders preventing men from seeing the footage – including an order that the matter be heard by a female magistrate, that no men be present when the video is played, and that it not be disclosed to men; in the alternative, an order that the matter be moved to the Children’s Court sitting in a different location, where a female magistrate regularly sits; and failing any of those orders, an order that the matter be permanently stayed. Notably, the applicant was in custody at the time the matter was originally heard and proceedings were delayed while this was determined, such was the strength of her principles on this issue (she now appears to be on bail).

The matter was originally heard by a magistrate in the Children’s Court, who declined to make the orders. That was appealed to the Supreme Court in TR v Constable Cox & Ors [2020] NSWSC 389, where Wilson J dismissed the appeal. This is the proceedings appealing against Wilson J’s decision.

The Court of Appeal (Basten JA; Leeming and McCallum JJA agreeing – but each with separate reasons, and on differing bases, so these citations are going to be lengthy) determined that the appeal failed for technical reasons not discussed here. But in the course of considering the issues, the Court here made a number of findings that have general importance.

The Local Court (and so the Children’s Court) has power, in appropriate cases, to make orders staying a prosecution conditionally (per Leeming JA at [45]; McCallum JA at [117]; Basten JA seemingly also agreeing, at [25]-[26]). The original orders sought should have been understood as a conditional permanent stay of the proceedings, rather than as an order compelling the Children’s Court to deal with the matter in a particular way, or by a particular category of person (per Leeming JA at [43]-[45], McCallum JA at [81]-[82]). In an appropriate case, such a conditional permanent stay could include a condition that a matter be heard by a female magistrate, provided that the condition is necessary for the effective exercise of the court’s statutory powers (per McCallum JA at [117]). The other orders sought – including the exclusion of people of a particular gender from the court, and restriction from viewing the footage – were capable of being facilitated under the Children (Criminal Proceedings) Act and the Court Suppression and Non-Publication Orders Act, respectively (per Basten JA at [28]-[31], Leeming JA agreeing at [43]; McCallum JA at [85]).

For practitioners, it would be fair to characterise most of the debate in this decision as academic (if interesting). However, the key takeaway is that the Local Court (and the Children’s Court – and therefore, almost certainly, the District Court) has power where necessary to order a permanent conditional stay of proceedings which includes a condition imposed on the court itself. Apart from the Indigenous cultural context in this case, that might find importance in other cultures – there are other examples of cultures where cross-gender exposure of the body or even just the face can cause challenges. The most obvious examples having religious backgrounds, but there are others. Whilst each of the three judges here was at pains to emphasise that the powers are only available in ‘appropriate circumstances’, the importance for practitioners is to remind you that for clients (or victims) where the need is strong enough, this course may be available – and there are additional statutory powers which can deal with things like subsequent disclosure. Equally, as both the original magistrate at first instance and the earlier Supreme Court decision pointed out, there may be practical solutions available which don’t need formal orders of a court. Often, delaying the proceedings just to get a particular gender excluded (or any other outcome) will be sufficiently unpalatable so as to make this an impractical way to run your matter.