Criminal law: April 2021

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

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 proceeding appealing against Wilson J’s decision.