Australian Broadcasting Corporation v Craig Gillon

[2007] NSWDC 76

CITATION:	Australian Broadcasting Corporation v Craig Gillon [2007] NSWDC 76
HEARING DATE(S):	01/05/07
EX TEMPORE JUDGMENT DATE:	1 May 2007
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	1. Grant leave to file Notice of Motion in the Registry subject to the registry ascertaining from the Dubbo District Court file number(s) for any criminal proceedings brought against Craig Gillon in that court; 2. Dispense with service on the DPP by reason of the consent of the respondent Craig Gillon to publication; 3. Notice of Motion dismissed; 4. These orders to be entered forthwith.
CATCHWORDS:	Criminal law – Publication orders – application for orders under s11(4)(b)(i) Children (Criminal Proceedings) Act 1987 – time at which order should be sought - documentary portraying discussion by Aboriginal adolescents of concerns about going to jail – publication does not connect the person with the criminal proceedings concerned – no order under s.11(4)(b)(i) required
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 (NSW), s.11 Family Law Act 1975 (Cth) s. 121
CASES CITED:	Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386 Markisic v AEA Ethnic Media Publications Pty Ltd & Ors [2007] NSWCA 378 Regina v Hart (Supreme Court of NSW, Common Law Division, Hulme J, 7 July 2006)
PARTIES:	Applicant: Australian Broadcasting Corporation
FILE NUMBER(S):	No. 1752 of 2007
COUNSEL:	Applicant: S. Dawson
SOLICITORS:	ABC Legal Services

1. This morning I heard an urgent application by was of Notice of Motion in which the Australian Broadcasting Corporation for the Court’s consent under s 11(4)(b) of the Children (Criminal Proceedings) Act 1987 (“the Act’) for the publication of the name of a child who was the offender in criminal proceedings in this court. I made orders after hearing the application but because I had a part heard matter commencing at 10 am the applicant agreed that I should set out my reasons in a judgment which will be emailed to the applicant’s office later today.

2. The Director of Public Prosecution was not served with notice of the application. No other person was served. I am satisfied that service is not necessary for the following reasons. Firstly, the criminal proceedings cannot be identified by number or subject matter because, I have been advised from the bar table, the Dubbo Court Registry has refused to provide the file number as this would be a potential contravention of the Act, so the Director of Public Prosecutions would have very little to go one. Secondly, the child (“Craig”) has consented. Thirdly, I am satisfied that s 11 of the Act does not in fact apply to the publication because the text of the publication is couched such broad terms as to fall outside the purpose of s11.

3. I should first set out a brief description of the publication and the reasons for urgency. The applicant is participating in “The Message Stick” Film Festival and the films, “When the Natives Get Restless”, a documentary about the lifestyle of teenage Aboriginals in isolated country towns, is to be shown this Sunday. The purpose of the documentary is to identify and analyse the significant social problems these young people face. From the little of the documentary that I have seen, it is a compassionate and insightful documentary of the same kind as that considered by Hulme J in Regina v Jay Hart (Supreme Court of New South Wales, 7 July 2006, unreported).

4. The part of the documentary which is the subject of this application shows adolescent boys and girls talking frankly about their experiences with the law. During this exchange, one of the children appears to make an admission about having been in a juvenile centre. The text of the documentary in which the child (whom I shall call “Craig” and who is now 14 years old) is shown apparently acknowledging he has spent time in a juvenile centre is as follows:

Craig: “I’ll never go to jail… me (bread) bad?”
Girl: “How would you know?”
Craig: “Coz I know”
Girl: “No you don’t”
Girl: “Coz… they’re bad… they don’t know how to stay out of trouble”
Boy: “They will be down, that’s what they will be”
Craig: “Not me boy…”
Boy: “Can’t you be out of juvenile centre you cunt?”
Craig: “You don’t care, that doesn’t mean I’ll go back to jail my (bread) bad?”

5. The applicant has made inquiries and ascertained that at an unknown date the child shown apparently admitting that he had in fact spent time in a juvenile detention centre had indeed done so, as a result of a sentence imposed in the District Court at Dubbo. The crime or crimes for which he was convicted are unknown to the applicant because the court staff at Dubbo were not prepared to reveal the charges, or even to give the applicant the file number for the District Court criminal proceedings in which the child was convicted. I do not know if any orders were made during those proceedings for the use of pseudonyms.

6. The child has consented to being named and copies of his consent, witnessed by his mother, have been tendered.

7. The applicant has responsibilities as a model litigant. It brings a Notice of Motion seeking the following orders:

(a) The Court consents to the publication and broadcasting of the name of the child in connection with these proceedings in the program “When the Natives Get Restless” (“Program”), such consent to extend to any republication or rebroadcast of the Program or any part of it.

(b) Such further or other orders as this Honourable Court thinks fit.

8. Section 11 of the Children (Criminal Proceedings) Act provides:

“(1) The name of any of the following persons must not be published or broadcasted in a way that connects the person with the criminal proceedings concerned:

(a) any person who:


(i) appears as a witness before a court in any criminal proceedings, or to whom any criminal proceedings relate, and

(ii) was a child when the offence to which the proceedings relate was committed, …

(1A) The prohibition in subsection (1) applies to the publication or broadcast of the name of a person:


(a) whether the publication or broadcast occurs before or after the proceedings concerned are disposed of, and

(b) even if the person is no longer a child, or is deceased, at the time of the publication or broadcast.

(4) Subsection (1) does not prohibit:


(a) the publication or broadcasting of an official report of the proceedings of a court that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by subsection (1), or

(b) the publication or broadcasting of the name of a person:


(i) in the case of a person who is a child under the age of 16 years at the time of publication or broadcasting – with the consent of the court concerned, or

(ii) in the case of a person who is of or above the age of 16 years at the time of publication or broadcasting – with the consent of the person, or

(c) the publication or broadcasting of the name of a person who has been convicted of a serious indictable offence, if the publication or broadcasting is authorised by a court under section (4B).


(4A) The consent of the court referred to in subsection (4) (b) (i) shall not be given except with the concurrence of the child or (if the child is incapable of giving concurrence) where the court is of the opinion that the pubic interest so requires.

(4B) A court that sentences a person on conviction for a serious children’s indictable offence may, by order made at the time of sentencing, authorise the publication or broadcasting of the name of the person (whether or not the person consents or concurs).

(4C) A court is not to make an order referred to in subsection (4B) unless it is satisfied:


(a) that the making of such an order is in the interests of justice, and

(b) that the prejudice to the person arising from the publication or broadcasting of the person’s name in accordance with such an order does not outweigh those interests.”


(4D) The burden of establishing the matters referred to in subsection (4C) (a) and (b) lies on the prosecuting authority.

(4E) A court that makes an order referred to in subsection (4B) must indicate to the person, and make a record of, its reasons for doing so.

(5) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

(6) For the purposes of this section, a reference to a person who appears as a witness before a court in any criminal proceedings includes a reference to a child who gives evidence in the form of a recording in proceedings in accordance with Part 3 of the Evidence (Children) Act 1997.

9. I am informed that the researches of counsel have not revealed any prior authorities that may be of assistance other than Regina v Jay Hart (Hulme J, Supreme Court of NSW, 7 July 2006) and Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386.

10. I should first note the submission that the District Court, where the child was sentenced, is “the court concerned” for the purposes of section 4(b)(i) and that for practical purposes there is no difference between the District Court at Sydney and the District Court at Dubbo. This means that the application is brought in the criminal proceedings in which the child was sentenced at Dubbo District Court.

11. I also note that section 4A envisages that a child under the age of 16 may give concurrence to his or her name being mentioned but then goes on to consider a situation where a child is incapable of giving concurrence, in which case the court must look at whether “the public interest” requires that such an application be brought. Since the child in question has consented, there is no requirement to determine public interest.

12. The first issue is whether I can make such an order at all. Section 11(4)(a)(i) sets out a formula for excluding from the prohibition publications made which are a part of official proceedings or with the consent of the person (if the person is over 16) or with the consent of the court concerned. The consent of the court shall not be given under section 11(4A) except, as has occurred here, with the concurrence of the child. However, in Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386 at [12], the Court of Criminal Appeal held that section 11(4B) cannot be invoked other than during the sentencing process, whether the person is named or not and that the words “by order made at the time of sentencing” were “intractable” (at [12] per Spigelman CJ). Parliament intended to confine applications for an order of this character to the time and to the court which undertook the sentencing task. This section, which intractably forbids later applications, appears to conflict with section 11(4)(1)(i) and (ii), which permit the naming of the child in the circumstances outlined above.

13. The applicant relied upon the decision of Hulme J in Regina v Jay Hart, where an order for publication of the names of three deceased children was made although Hulme J does not appear to have been the sentencing judge. This decision was handed down six month before Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK. The sections referring to the sentencing judge’s role “whether the person consents or not” in section 11(4B), and the process set out in section 4(b)(i) and (ii) where a child over 16 may consent or the “court concerned” can make an order, are difficult to reconcile.

14. However, it is not necessary for me to determine whether an application can be brought once the proceedings have been concluded, because the requirements of section 11(1) have first to be satisfied. The name of the child must not be published or broadcast “in a way that connected the person with the criminal proceedings concerned”. In other words, the publication needs to connect (or identify) the child with the actual criminal proceedings concerned.

15. That has not happened here. There is nothing in the documentary that identifies the child with “the criminal proceedings concerned”. No information at all is provided in the documentary about what the criminal proceedings were. All that is shown is that the child appears to have made an admission about spending some time in a juvenile centre. The language of the adolescents’ conversation is so general that not much more can be made out of it than that Craig says he is determined “never to go to jail”.

16. The manner in which section 11 functions is not dissimilar to the functioning of section 121 Family Law Act 1975 (Cth), which prohibits the publication of information about Family Court proceedings. The elements of this section were considered in Markisic v AEA Ethnic Publishers Pty Ltd & Ors [2006] NSWCA 378 and at [179] I note one of the submissions made by the respondent, and apparently accepted by the court, was that the account of the appellant kidnapping his daughters was not an “account of any proceedings” in the Family Court and therefore section 121 had no relevance.

17. The purpose of section 11 is to prevent public identification of a minor which connects that minor with the criminal proceedings concerned. In the present case, not only are the criminal proceedings not identified, but the statements made by Craig are equivocal. There has been no breach of section 11 and accordingly I make the following orders:

Orders

1. Grant leave to file Notice of Motion in the Registry subject to the registry ascertaining from the Dubbo District Court file number(s) for any criminal proceedings brought against Craig Gillon in that court.

2. Dispense with service on the DPP by reason of the consent of the respondent Craig Gillon to publication.

3. Notice of Motion dismissed.

4. These orders to be entered forthwith.