Using Family Court documents in Criminal Proceedings – the ‘implied undertaking’ by Dominic Brunello
Using Family Court documents in Criminal Proceedings – the ‘implied undertaking’
It is not uncommon for sexual assault prosecutions to emanate from a breakdown in a marital or de facto relationship, and to run concurrent with disputed issues of parenting and property in the Federal Circuit & Family Court.
In these circumstances, an issue may arise regarding whether an Order of the Family Court is required to allow a defendant to use a (relevant) document produced in the family law matter in their criminal proceedings. It is commonly contended that production and use of Family Court documents in other proceedings is proscribed under the prohibition on publication in s 121 of the Family Law Act and the ‘implied undertaking’ discussed in Hearne v Street (2008) 265 CLR 125.
Attached is the recent Federal Court judgment of Littlefield v Pemble [2023] FEDCFAMC1A 198. At [26] – [39] in Littlefield, the Federal Court canvassed the legal principles in the context of an appeal against a single Judge’s decision to refuse an application by a party for an Order releasing them from the implied undertaking. The Federal Court ruled in two relevant respects. First, the Court ruled that the statutory prohibition on publication in s 121 of the FLA is limited to publication or dissemination, “…to the public or to a section of the public”: Littlefield, [30]. Provision of a copy of Family Court records to a solicitor for a party in other proceedings does not appear to fall within the scope of those statutory words. Further, there is an exception is s 121(9)(a) that applies to any recipient, “…concerned in proceedings in any Court”: [32].
Regarding the implied undertaking, Tree, Christie and Strum JJ at [27] applied the High Court’s reasoning in Hearne v Street at [96]-[97]. The High Court in Hearne held that determination of the existence of the implied undertaking in a particular case directs attention to, “the circumstances under which the relevant person obtained the documents or information” in the Family Court: Hearne at [108]. In particular, the implied undertaking applies where the party who produced the relevant document in the family law matter was, “…compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information…”.
Applying Littlefield, a document produced in a family law matter in answer to a court Direction, Order, subpoena or other compulsory circumstance cannot be provided for use in another proceeding absent an Order of the Family Court releasing the party from their implied undertaking. The apparent corollary is that documents produced in a family law matter not under compulsion may be provided absent an Order of the Family Court.
A test of “substantial injustice” applies to applications to the Family Court for an Order to release and use.
A breach of the implied undertaking is serious. The consequence may be a finding of contempt. However, there is an antecedent issue: does the implied undertaking apply? The answer to this question can be difficult to discern. A sensible approach is to seek an Order, if in any doubt.
Littlefield v Pemble [2023] FEDCFAMC1A 198
DOUBLE JEOPARDY IN JEOPARDY by Dominic Brunello
DOUBLE JEOPARDY IN JEOPARDY – CRIMINAL CODE AND OTHER LEGISLATION (DOUBLE JEOPARDY EXCEPTION AND SUBSEQUENT APPEALS) AMENDMENT BILL 2023
On 19 February 2024 the Legal Affairs and Safety Committee tabled a report recommending that State Parliament pass the Criminal Code and Other Legislation (Double Jeopardy Exception and Subsequent Appeals) Amendment Bill 2023. The Committee’s recommendation was made over objection by the Queensland Law Society and the Bar Association.
You can access the Bill here:-
https://www.legislation.qld.gov.au/view/html/bill.first/bill-2023-024
And, the Committee’s Report here:-
https://documents.parliament.qld.gov.au/tp/2024/5724T218-9FCE.pdf
The Bill diminishes the protection afforded by a plea of Autrofis Acquit. There are three fundamental aspects.
First, the Bill expands the statutory exception to the double jeopardy rule permitting the Crown to make application to the Court of Appeal for leave to re-try an acquitted person. Currently, a Crown application may only be made in respect of a prosecution for murder. The Bill enlarges the list of subject offences to include various sexual offences, including rape and sexual assault.
Second, the Bill amends the test that the Crown must meet in the application, in particular the meaning of the term “fresh evidence” viz. the requirement that it was unavailable at first instance with the exercise of due diligence.
Third, the Bill creates a new avenue of appeal against conviction for a sentenced prisoner to the Queensland Court of Appeal, where their appeal rights have otherwise been exhausted. The Appellant must establish the existence of “fresh evidence” or “new evidence” that is compelling. In the case of an application based on fresh evidence, the Appellant must establish that allowing their conviction to stand will occasion a miscarriage of justice. Respecting “new evidence” (i.e. evidence available at trial with exercise of due diligence by the defence), a novel test is prescribed. The Appellant must establish that the new evidence proves, to the balance of probabilities, that they are not guilty. In other words, the test imposes an onus to prove a negative to the civil standard. This test is a new concept in criminal appeal statutes.
The Bill follows the mass media publicity around flaws in DNA evidence produced by Queensland Health Forensic and Scientific Services consequent upon the findings of the Commission of Inquiry into DNA testing in Queensland.
There has been understandable outcry in certain sectors of the Queensland community at the prospect that offenders may have evaded conviction due to QHFSS producing flawed or incomplete expert (forensic biology) evidence. However, the number of cases materially impacted is not yet known. That which is known is that the rule against double jeopardy is a cornerstone of our criminal justice system.
The double jeopardy rule is underpinned by matters of high principle: the need for finality in criminal proceedings, the incontrovertibility of the verdict of the jury, the importance of propriety in police investigations and the need to limit State power to guard against oppression in the adversarial process. Each is an essential characteristic of a criminal justice system in which the public can have confidence.
In its March 2001 final report into ‘Double Jeopardy and Prosecution Appeals’, the Law Commission of England and Wales concluded that the only offence justified to come within the scope of any exception to the double jeopardy rule is murder. In so doing, the Commission made two clarion observations. First, murder is an offence qualitatively different from all others, such that, “…an apparently illegitimate acquittal is manifest, and so serious that it overrides the values implicit in the rule against double jeopardy”. The Commission’s second point is worth rehearsing in full:-
“It is, of course, always the case that the law (and particularly the criminal law) should represent the prevailing values of society, and it is important to recognise that such values can and do change. Even so, double jeopardy serves to maintain confidence in the criminal justice system in a way that is too easily underestimated. The reaction to a particular case can be vocal, powerful and immediate. In a highly charged atmosphere which might understandably arise it may be all too easy to discount the reassurance gained by reflecting, in less emotive circumstances, on long-standing traditional bulwarks of individual liberty.”
The ‘untrue’ DNA evidence produced by QHFSS was a function of a finite episode of executive, bureaucratic and expert error. Statutory modification of the rule against double jeopardy will impact our criminal justice system indefinitely.
Robertson O'Gorman Prize for Criminal Law 2018
Dominic Brunello presented the Robertson O’Gorman Prize in Criminal Law at the University of Queensland’s Law Awards Ceremony on Tuesday, 5 June 2018. Our congratulations go to Emily Rudz who was presented with the criminal law prize.
The event is held each year to recognise and congratulate students who have excelled in individual subjects. As one of Queensland’s leading criminal law firms, Robertson O’Gorman is proud to sponsor two prizes for students that receive the highest marks in Criminal Law and Procedure.