Australian Broadcasting Corporation v Local Court of NSW
[2014] NSWSC 239
•18 March 2014
Supreme Court
New South Wales
Medium Neutral Citation: Australian Broadcasting Corporation v Local Court of NSW [2014] NSWSC 239 Hearing dates: 12 March 2014 Decision date: 18 March 2014 Jurisdiction: Common Law Before: Adamson J Decision: (1) Grant leave to appeal the orders made by Stoddart LCM on 23 October 2013 and the pseudonym order made on 4 December 2013.
(2) Set aside orders 2, 4(b) and 6 made by Stoddart LCM on 23 October 2013.
(3) Set aside the pseudonym order made by Stoddart LCM on 4 December 2013.
(4) Direct that any party who, or which, applies for a costs order to make any such application in writing within seven days to my Associate.
(5) Note that any continued or further publication of the Draft Child Death Report referred to in these reasons may, despite the setting aside of the orders made by Stoddart LCM referred to above, constitute a breach of s 254(1) of the Children and Young Persons (Care and Protection) Act.
Catchwords: APPEAL - Leave to appeal from non-publication and suppression orders made under the Court Suppression and Non-Publication Orders Act 2010 (NSW) and pseudonym orders
SUPPRESSION ORDERS - whether suppression and non-publication orders were necessary to prevent prejudice to the proper administration of justice - public interest in preserving confidentiality of informers - suppression orders that replicate statutory provision - public interest in open justice - need for sufficient particularity - orders not "necessary" - set asideLegislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW), s 29, s 254
Children (Criminal Proceedings) Act 1987 (NSW), s 15A, s 15B, s 15E
Court Suppression and Non-publication Orders Act 2010 (NSW), s 3, s 6, s 7, s 8, s 9, s 11, s 14
Crimes (Appeal and Review) Act 2001 (NSW), s 52, s 53
Jury Act 1977 (NSW), s 53A, s 53C, s 68CCases Cited: Application by John Fairfax Publications Pty Limited re MSK, MAK, MMK and MRK [2006] NSWCCA 386
Attorney-General for the State of NSW v X [2000] NSWCA 199; 49 NSWLR 653
D v National Society for the Prevention of Cruelty to Children [1978] AC 171
Ex parte Bread Manufacturers Limited: re Truth and Sportsman Limited (1937) 37 SR (NSW) 242
Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim [2012] NSWCCA 125; 83 NSWLR 52
Hinch v Attorney- General (Victoria) [1987] HCA 56; 164 CLR 15
John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; 61 NSWLR 344
John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465
Marks v Beyfus (1890) 25 QBD 494
Rinehart v Welker [2011] NSWCA 403Category: Interlocutory applications Parties: Australian Broadcasting Corporation (Plaintiff)
Local Court of New South Wales (First Defendant)
Director of Public Prosecutions (Second Defendant)
Tamie Apps (Third Defendant)
Director-General of the Department of Family and Community Services (Fourth Defendant)Representation: Counsel:
MA Polden (Plaintiff)
T Molomby SC (Third Defendant)
B Baker (Fourth Defendant)
Solicitors:
Rob Simpson, Australian Broadcasting Corporation (Plaintiff)
Kernaghan & Associates Lawyers (Third Defendant)
I V Knight, Crown Solicitor (Fourth Defendant)
File Number(s): 2013/350723 Publication restriction: Nil
Judgment
Introduction
On 26 June 2013 the third defendant (the accused) was charged with murdering her two-year old son (the deceased) in August 2012. On 10 July 2013, the accused applied for bail. The police statement of facts was tendered.
On 18 September 2013 the ABC broadcast a segment on The 7.30 Report which contained references to the police statement of facts, including that several people had made reports about the deceased to the Department of Family and Community Services (the Department) in the months and weeks prior to his death. The deceased was identified by name and image. The accused was named. The members of staff of the childcare centre who made reports were not named but visual images of the childcare centre were broadcast, including prominent shots of a large sign at its entrance on which its name appeared.
By notice of motion filed in the Wollongong Local Court on 19 September 2013, the accused sought orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) prohibiting the publication of information relating to the events that gave rise to her prosecution. Interim orders were made on 19 September 2013 and 9 October 2013. On 9 October 2013, the fourth defendant, the Director-General of the Department was granted leave to be heard on whether an order concerning those who made reports to it (the informers) ought be made.
It is not necessary to consider the earlier orders since they were superseded by the orders made on 23 October 2013, set out below. The prayers of the amended summons that related to the earlier orders (1, 2 and 5) were not pressed.
On 23 October 2013, Stoddart LCM made the following orders:
Order 2: The publication of information that comprises evidence or information about evidence that is not otherwise disclosed by evidence in open court in the course of the matter is prohibited (The evidence order).
Order 4(b): Further, the identity or employer name of those who made reports to the Department of Family and Community Services concerning the child the subject of these proceedings prior to his death unless they have consented to such disclosure beyond the defendant and her legal representatives and the Director of Public Prosecutions and his servants, agents, and employees save for the proper purpose of these proceedings is prohibited (The informer order).
Order 6: Orders (2) and (4(b)) are to apply throughout the Commonwealth of Australia (The geographical order).
The evidence order was expressed to have been made on the grounds specified in s 8(1)(a), (c) and (e) of the Court Suppression and Non-Publication Orders Act. No ground for making the informer order was identified by the Magistrate, although the relevant interim order, made on 9 October 2013, did identify s 8(1)(e) as the ground on which the order was made.
On 4 December 2013, Stoddart LCM made the following additional order:
The accused is to be referred to as "TA" until further order (The pseudonym order).
The plaintiff (ABC), by amended summons filed on 6 December 2013, seeks leave to appeal pursuant to s 14 of the Court Suppression and Non-publication Orders Act against each of the evidence, informer and geographical orders made by Stoddart LCM set out above. The ABC also seeks a declaration in respect of the pseudonym order, and an order to set it aside.
The committal hearing of the accused is to begin on 26 March 2014. It is desirable that this appeal be decided before that date in order that any constraints that apply to reporting of the committal proceedings are determined before its commencement.
The accused and the Department are the active defendants in this Court, the Local Court and the DPP having filed submitting appearances.
Whether leave to appeal ought be granted
At the hearing before me, the accused and the Department withdrew their opposition to leave to appeal being granted. No party contended that the matters raised were other than significant. The accused and the Department each ultimately accepted that the orders in their current form ought not stand.
Having regard to these matters, to the importance of the principles of open justice and the protection of informers and to the need to ensure that court orders purportedly made under powers conferred by legislation conform to the requirements of the legislation, I consider it appropriate that there be a grant of leave.
Relevant legislation
An appeal to this Court lies, by leave, against a decision of the Local Court to make a suppression order or a non-publication order: s 14(1) and (2) of the Court Suppression and Non-publication Orders Act and s 52 and 53 of the Crimes (Appeal and Review) Act 2001 (NSW).
The nature of the appeal is provided for by s 14(5) of the Court Suppression and Non-publication Orders Act as follows:
An appeal under this section is to be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.
In Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim [2012] NSWCCA 125; 83 NSWLR 52, Bathurst CJ (Whealy J agreeing) concluded at [6] that the hearing on an appeal under the Court Suppression and Non-publication Orders Act is a hearing de novo.
On an appeal, this Court may confirm, vary or revoke the order or decision subject to the appeal and may make any order or decision under the Act that could have been made in the first instance: s 14(4) of the Court Suppression and Non-publication Orders Act.
The Court Suppression and Non-publication Orders Act relevantly provides:
S 3 Definitions
non-publication order means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information)
suppression order means an order that prohibits or restricts the disclosure of information (by publication or otherwise).
S 6 Safeguarding public interest in open justice
In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
S 7 Power to make orders
A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of:
(a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or
(b) information that comprises evidence, or information about evidence, given in proceedings before the court.
S 8 Grounds for making an order
(1) A court may make a suppression order or non-publication order on one or more of the following grounds:
(a) the order is necessary to prevent prejudice to the proper administration of justice,
. . .
(c) the order is necessary to protect the safety of any person,
. . .
(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.
(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.
S 9 Procedure for making an order
. . .
(5) A suppression order or non-publication order must specify the information to which the order applies with sufficient particularity to ensure that the order is limited to achieving the purpose for which the order is made.
11 Where an order applies
(1) A suppression order or non-publication order applies only to the disclosure or publication of information in a place where the order applies, as specified in the order.
(2) A suppression order or non-publication order is not limited to applying in New South Wales and can be made to apply anywhere in the Commonwealth.
(3) However, an order is not to be made to apply outside New South Wales unless the court is satisfied that having the order apply outside New South Wales is necessary for achieving the purpose for which the order is made.
Section 29 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) relevantly provides:
Protection of persons who make reports or provide certain information
(1) If, in relation to a child or young person or a class of children or young persons, a person makes a report in good faith to the Director-General or to a person who has the power or responsibility to protect the child or young person or the class of children or young persons:
(a) the making of the report does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct, and
(b) no liability for defamation is incurred because of the report, and
(c) the making of the report does not constitute a ground for civil proceedings for malicious prosecution or for conspiracy, and
(d) the report, or evidence of its contents, is not admissible in any proceedings other than the following proceedings (and appeals arising from the following proceedings):
(i) care proceedings in the Children's Court,
(ii) proceedings in relation to a child or young person under the Family Law Act 1975 of the Commonwealth,
(iii) proceedings in relation to a child or young person before the Supreme Court or the Civil and Administrative Tribunal,
(iv) proceedings before the Civil and Administrative Tribunal,
(v) proceedings under the Coroners Act 2009, and
(e) a person cannot be compelled in any proceedings to produce the report or a copy of or extract from it or to disclose or give evidence of any of its contents, and
(f) the identity of the person who made the report, or information from which the identity of that person could be deduced, must not be disclosed by any person or body, except with:
(i) the consent of the person who made the report, or
(ii) the leave of a court or other body before which proceedings relating to the report are conducted,
and, unless that consent or leave is granted, a party or witness in any such proceedings must not be asked, and, if asked, cannot be required to answer, any question that cannot be answered without disclosing the identity or leading to the identification of that person.
Section 254 of the Children and Young Persons (Care and Protection) Act relevantly provides:
Disclosure of information
(1) A person who discloses any information obtained in connection with the administration or execution of this Act is guilty of an offence unless the disclosure is made:
(a) with the consent of the person from whom the information was obtained, or
(b) in connection with the administration or execution of this Act or the regulations, or
(c) for the purposes of any legal proceedings arising out of this Act or the regulations, or of any report of any such proceedings, or
(d) in accordance with a requirement imposed under the Ombudsman Act 1974, or
(e) with other lawful excuse.
Maximum penalty: 10 penalty units or imprisonment for a period not exceeding 12 months, or both.
. . .
Division 3A of the Children (Criminal Proceedings) Act 1987 (NSW) relevantly prohibits, by s 15A(1), the publication and broadcasting of the deceased's name, since he was a child. The prohibition is, by s 15A(2), expressed to apply only to the publication or broadcast of a person's name to the public, or a section of the public, by publication in a newspaper or periodical publication, by radio or television broadcast or other electronic broadcast, by the Internet, or by any other means of dissemination. Section 15A(3) extends the definition of "publication" to the publication of information to certain Internet websites.
Official reports of court proceedings that include the name of any person the publication or broadcasting of which would otherwise be prohibited by this Division are permitted: s 15B. Where the child is, as here, deceased, the senior available next of kin of the child (in this case, the deceased's father) may consent to the publication or broadcasting of the child's name: s 15E. The accused is not permitted to give consent, or indeed object, since she was charged with a relevant offence: s 15E(4).
Evidence
Evidence in the Court below
The evidence in the Court below comprised an affidavit of James Howell, the accused's instructing solicitor:
(1) to which was annexed the following:
(a) An article published by the Sydney Morning Herald on 18 September 2013 concerning reports about the deceased to the Department, his death and the alleged reduction in the numbers of child protection case workers in Wollongong.
(b) A transcript of the relevant segment on The 7.30 Report.
(c) An article published by the Illawarra Mercury on 19 September 2013 concerning the deceased and alleged shortages of child protection caseworkers in Wollongong.
(2) and which contained the following paragraphs:
"I am aware that yesterday evening my principal, Mr Aaron Kernaghan, spoke with the next of kin of the deceased child, [name of father of deceased].
I am aware that during that conversation [the deceased's father] retracted his consent for the publication of the name of [deceased] to be published."
The police statement of facts (which had been on the Local Court file since the bail application on 10 July 2013), was before the Court below.
The police statement of facts contained the following description of findings on post mortem examination:
"A post mortem examination was conducted by Dr J Duflou, between the 4-15 August 2012. During the examination the following injuries were identified:
Multiple bruises to the surface of the body,
Blunt force head injury with;
Multifocal cerebral subdural haemorrhages, up to several days old.
Recent thrombosis,
Contusions,
Multifocal cortical ischemia of differing ages.
Isolated axonal spheroids, corpus callosum.
Moderate cerebral swelling.
Spinal subarachnoid haemorrhage.
Bilateral recent optic nerve sheath haemorrhage.
Sparse recent bilateral superficial retinal haemorrhages
Multiple skeletal injuries:
Fractured ribs 5, 6, & 7 on the left laterally.
Fractured left Clavicle.
Fractured right scapula.
Bilateral distal radius fractures
Periosteal reaction of upper extremity long bones.
Abdominal blunt force injury;
Peritonitis with 300ml turbid fluid in peritoneal cavity.
Retroperitoneal blunt force injury.
Transmural jejunal injury
Early Pneumonia
Prolonged 'stress response'.
The victim was described as small for his age and the cause of death was opined to be "multiple injuries".
Further evidence relied on in this Court
The evidence in this Court comprised, in addition to the evidence in the Court below, the following:
(1) The broadcast of the relevant segment from The 7.30 Report; and
(2) A copy of the media release issued on behalf of the accused by her solicitors at 11.50 pm on 18 September 2013 in which the accused was identified by name.
The broadcast, which was about ten minutes long, was played in open court. It commenced as follows:
LEIGH SALES, PRESENTER: The death of two-year old [deceased's name] was a tragedy waiting to happen.
His condition so alarmed the family's neighbours that they contacted police and welfare services several times. His daycare centre also raised the alarm.
But nothing was done, and weeks later, the toddler was dead, his mother charged with murder.
The case is just one of a series of child deaths, prompting calls for the sacking of the New South Wales Family and Community Services Minister Pru Goward.
An internal review obtained by 7.30 reveals that the boy should have received urgent help, but it didn't happen, amid staff cuts that welfare workers now say are partly to blame for his death.
Tonight those workers are speaking out about the system they say is failing children at risk.
There followed film of caseworkers referring to the lack of staff and neighbours describing their observations of the deceased. The narrative returned to the topic of staff cuts in the Department and the invidious decisions that caseworkers were required to make in light of lack of resources. The broadcast continued:
LEE AKRIVOS [neighbour]: You've had seven reports from here, you've had reports from the preschool, you've had reports from where they ended up living. That boy was in danger. Surely someone could have spent half an hour to go out and have a look. That's my opinion.
TRACEY BOWDEN [reporter]: 7.30 has obtained a draft copy of the Department's internal child death review report on [the deceased]. The review states that after reports were received in July, 2012 about physical injuries to [the deceased], managers at Wollongong CSC intended to allocate the case, but did not have the resources to do so. It was clear that this case was one of the highest priorities among the unallocated cases at the CSC at that time. In fact it appeared to regularly be next on the list for allocation between July and [the deceased's] death in August.
An image of a draft Child Death Report prepared by the Department was shown fleetingly in the broadcast on a number of occasions. The text could not be read. The logo of the State of New South Wales (a stylized waratah in red with the lettering in blue) was identifiable.
There was then further footage of caseworkers and neighbours about the deceased's death which continued as follows:
TRACEY BOWDEN [reporter]: [The deceased] died from multiple blunt force injuries to the head and body. Police charged his mother, 32-year-old Tamie Apps with his murder. Police charge sheets allege that the motive for the murder was Tamie Apps' obsession with her boyfriend. They also state that she referred to her youngest child as a haemorrhoid and said she wished he'd never been born.
Later in the broadcast there was a further reference to the Department's internal review:
TRACEY BOWDEN: In its findings, the internal review into [the deceased's] death states that most reports received in the, "... 12 months prior to [the deceased's death]," demonstrated a concerning picture of, "escalating and significant risk to [the deceased] and his siblings." And that the reports, "... should have received a child protection response."
The broadcast concluded with footage from the New South Wales Parliament in which the Minister, Ms Goward, answered a question put by Mr Robertson, the Leader of the Opposition, concerning caseworker cuts in Wollongong.
The media release issued on behalf of the accused contained the following passage:
The 7.30 Report segment contains information that is disputed by our client and which is the subject of litigation presently underway before the Local and the Supreme Courts of New South Wales.
Our client identifies as Aboriginal and the publishing of her son's image and name are highly offensive to her, her family and those that currently care for her other children while our client remains in custody pending her day in court.
In the present instance, any comment by media as to the cause of death of the child, the timeline and history of alleged prior abuse upon that child explicitly or implicitly alleged to have been caused by our client and some media statements and commentary made to the present date are disputed by our client and of critical issue in the present litigation.
[Emphasis in original.]
The draft Child Death Report referred to in the broadcast was neither in evidence in the Court below, nor in this Court.
Factual issues
The accused raised a factual issue at the hearing in this Court as to whether the deceased's father had consented to the disclosure of the deceased's name. Having regard to the terms of Mr Howell's affidavit set out above I infer that the deceased's father had consented to the naming of the deceased in the reports, including the ABC's 7.30 Report. The statement that he "retracted" his consent can only be understood on that basis. The evidence established that at the time the ABC broadcast The 7.30 Report, it was not in breach of s 15A of the Children (Criminal Proceedings) Act because the deceased's father had consented and the accused had no right to object (s 15E). The relevant statutory provisions are set out below.
A further issue arose in the hearing in this Court: whether those persons who were identified or shown in the broadcast as having complained to the Department had consented to the disclosure of their identity or the fact and contents of their complaints. A childcare centre was filmed from the outside and a reference made in the broadcast to staff who had complained to the Department. The members of staff were not named. There was no evidence about whether the staff or those responsible for the childcare centre had given consent.
I infer that those persons who were interviewed by the ABC and who had also complained to the Department consented to the disclosure of their identities and the fact and contents of their complaints. In the absence of evidence of lack of consent of the members of staff of the childcare centre or others referred to in the broadcast, I do not infer that consent was not given by any of the relevant persons (natural or corporate) identified by name or image in the broadcast. I reject the argument put on behalf of the accused that it was for the ABC to prove in these proceedings that consent had been given, since it was the accused who alleged that it had not.
The evidence order
The parties' submissions
The ABC submitted that the evidence order was invalid on the following grounds:
(1) It fails to comply with s 9(5) of the Court Suppression and Non-publication Orders Act since it does not specify the information to which the order applies with sufficient particularity to ensure that it is limited to achieving the purpose for which the order is made (grounds 2, 3 and 4 of the amended summons).
(2) It merely recites s 7(b) of the Court Suppression and Non-publication Orders Act in terms (ground 4 of the amended summons).
(3) Because of its breadth, it cannot reasonably be said to be either necessary to prevent the prejudice to the proper administration of justice, necessary to protect the safety of any person or otherwise necessary in the public interest or that that public interest significantly outweighs the public interest in open justice within the meaning of s 8 of the Court Suppression and Non-publication Orders Act (grounds 1 of the amended summons)
(4) There was no basis for identifying s 8(1)(c) of the Court Suppression and Non-publication Orders Act as a ground for the evidence order since there was no evidence of any threat to any person (ground 7 of the amended summons).
In support of ground (2) above, the ABC relied on Application by John Fairfax Publications Pty Limited re MSK, MAK, MMK and MRK [2006] NSWCCA 386 (MSK), in which the Court of Criminal Appeal (Spigelman CJ, Basten JA and Hislop J agreeing) considered an order which, in terms, replicated the prohibition in s 11 of the Children (Criminal Proceedings) Act, which was the forerunner to s 15A - s 15E of the Act. Spigelman CJ said, at [29], that it was inappropriate for a court to make an order that carried the prospect of contempt proceedings parallel to proceedings for a contravention of a statutory provision.
The ABC relied on the following passage from Rinehart v Welker [2011] NSWCA 403, in which Bathurst CJ and McColl JA considered the effect of the word "necessary" in s 8 of the Court Suppression and Non-publication Orders Act at [27]:
The operative condition for making a suppression order under s 8 of the CSPO Act is that it be "necessary" to do so, which " ... is a strong word [which, in] collocation [with] necessity to prevent prejudice to the administration of justice ... 'suggests Parliament was not dealing with trivialities'": Hogan v Australian Crime Commission[2010] HCA 21; (2010) 240 CLR 651 (at [30]). The observations in Hogan v Australian Crime Commission were made in relation to a legislative scheme which, while it required the jurisdiction of the court to be exercised in open court (s 17, Federal Court of Australia Act ) did not contain a provision in like terms to s 6 of the CSPO Act. That provision, in our view, reinforces the legislative intention that CSPO Act orders should only be made in exceptional circumstances, a position which prevailed at common law: John Fairfax Publications Pty Ltd v District Court of NSW (at [21]).
The ABC also submitted that the evidence order could not be said to be necessary because it had not been shown that the general law relating to sub judice contempt was inadequate in any material respect to deal with any publication that could have the effect of compromising either the committal or the trial. The ABC referred to John Fairfax Publications Pty Ltd v District Court of NSW [2004] NSWCA 324; 61 NSWLR 344 in which Spigelman CJ, (Handley JA and MW Campbell A-JA agreeing) said at [59]:
"It is conceivable that media publicity may create a situation in which an accused will not be able to have a fair trial within a reasonable period or at all. In that circumstance an anticipatory non-publication order may be needed to ensure fairness to the prosecution. However, that exceptional case is so unlikely that it cannot form the basis for an implication of a power on a test of
necessity. Applications for a permanent stay have failed in the most sensational of cases: Anita Cobby, Ivan Milat, Phillip Bell, the Childers Backpacker Hostel fire, Lucy Dudko, William D'Arcy, Bruce Burrell."
The ABC also relied on the so called "Bread Manufacturer's Defence", after Ex parte Bread Manufacturers Limited: re Truth and Sportsman Limited (1937) 37 SR (NSW) 242, in which Jordan CJ said at 249:
It is of extreme public interest that no conduct should be permitted which is likely to prevent a litigant in a Court of justice from having his case tried free from all matter of prejudice. But the administration of justice, important though it undoubtedly is, is not the only matter in which the public is vitally interested; and if in the course of the ventilation of a question of public concern matter is published which may prejudice a party in the conduct of a law suit, it does not follow that a contempt has been committed. The case may be one in which as between competing matters of public interest the possibility of prejudice to a litigant may be required to yield to other and superior considerations. The discussion of public affairs and the denunciation of public abuses, actual or supposed, cannot be required to be suspended merely because the discussion or the denunciation may, as an incidental but not intended by-product, cause some likelihood of prejudice to a person who happens at the time to be a litigant.
The ABC submitted that the evidence order was bad in form because it required journalists to predict what would become evidence in the proceedings if they wished to report anything about the matter in advance of the admission of evidence. It contended that the order, if valid, would effectively prevent any reporting of the committal proceedings or the circumstances surrounding the deceased's death, at least until the trial.
Mr Molomby SC, who appeared on behalf of the accused, accepted that the evidence order was too wide and could not be defended in its present form. He propounded the following orders which he contended ought be substituted for the evidence order:
1. That there be no publication of the document headed "Confidential - INTERNAL CHILD DEATH REVIEW REPORT - [deceased's name]" shown visually in part on the Australian Broadcasting Corporation's 7.30 Report on 18 September, 2013, or any part of the contents of that document. This order is made pursuant to Section 8(1)(a) and Section (8)(1)(e) of the Court Suppression and Non publication Orders Act 2010
2. That there be no publication of the programme item of approximately ten minutes length, whose transcript is annexed to this order, transmitted on the 7.30 Report on 18 September 2013 in which images of the deceased appeared.
(the proposed evidence orders)
Mr Molomby submitted:
"There's no doubt there's an issue of public interest involved in this discussion, but what this story did was take this child's case and run it as the exemplar of that [the Department's lack of resources] throughout in a way that's extraordinarily prejudicial to the person on trial."
Mr Molomby submitted that it was necessary that an order of this nature be made because the ABC's conduct demonstrated that it was prepared to act in disregard of the law. He submitted that I ought not infer that the deceased's father had consented to the disclosure of the deceased's name or that the persons who had complained to the Department had consented to the disclosure of their identity or their complaints. Mr Molomby submitted that the Draft Child Death Report was highly prejudicial to the accused and compromised her prospects of obtaining a fair trial.
The Department did not wish to be heard in relation to the evidence order or the proposed evidence orders, save that it sought to have noted that the Draft Child Death Report would appear to fall within the prohibition in s 254 of the Children and Young Persons (Care and Protection) Act since it is information obtained in connection with the administration or execution of the Act. Ms Baker submitted on behalf of the Department that it was appropriate, if I were minded to set aside the evidence order, to note that any continued or further publication of the Draft Child Death Report may, despite the discharge of the evidence order, constitute a breach of s 254(1). Ms Baker referred me to what she contended was a note to similar effect in Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim at [105].
The ABC submitted in reply to the proposed evidence orders that the principal vice remained: they had not been shown to be necessary and therefore could not be made under either s 8(1)(a) or (e) of the Court Suppression and Non-publication Orders Act.
Reasons
It is apparent from the proposed evidence order for which the accused contended in the hearing before me that the accused accepts, in my view correctly, that the evidence order is too wide. I accept each of the ABC submissions set out in summary form in (1)-(4) above as providing a proper basis to allow the appeal in respect of the evidence order and set it aside.
The principal outstanding issue is whether I should, as the ABC contended, make no order in substitution for the evidence order or, as the accused contended, make the proposed evidence orders.
The reasons of the Court below identify the relevance of the Draft Child Death Report to the making of the evidence order in the following terms:
Of particular concern to the accused and the Department of Family and Community Services is the reference in the Australian Broadcasting Commission's 7.30 Report to the departments (sic) internal Child Death Review Report. This facts (sic) Review Report does not and will not, I am told, form any part of the prosecution brief against the accused.
There is, however, some reference to a report of the Fact Sheet filed with the Court papers which the media has had access to. Of course there are certain statutory restrictions pursuant to s 29 and 254 of the Children and Young Persons (Care and Protection) Act 1998. I have been advised that it is the case that some legal action is being considered against the Australian Broadcasting Commission in that regard.
The accused does not take any issue with the free and appropriate reporting of Court proceedings. Indeed order 2 includes the phase (sic) "that is not otherwise disclosed by evidence in open court in the course of the matter". The concern (sic) expressed in the submissions are such that unless this order is made then there is a real risk that the accused will not be ensured a completely fair trial. The accused has indicated that, amongst other things, the cause of the death of this child was in dispute. It is contended that the broadcasting of material regarding matters that will not be part of any prosecution case will be prejudicial to the accused and as such it is necessary to make this order.
The proposed evidence orders overcome the principal objections to the evidence order, in that there is sufficient particularity to enable third parties to understand the breadth of the prohibition and the reference to s 8(1)(c) has been removed. The proposed evidence orders are based on s 8(1)(a): that it is necessary to prevent prejudice to the proper administration of justice, which, in this context, means the fair committal and fair trial (if any) of the accused. The real question is whether such orders are "necessary", having regard to the primary objective of the administration of justice identified in s 6 of the Court Suppression and Non-publication Orders Act, namely to safeguard the public interest in open justice.
It appears from the extract of the Magistrate's reasons set out above that his Honour was principally concerned with the references in the broadcast to the Draft Child Death Report and considered that its publication ought be prohibited since the prosecution did not propose to tender it at the trial. The difficulty with the balance struck by the Court below as reflected in the evidence order is that it would permit the media to report only that which, at any trial of the accused, the jury would be permitted to consider. Although the evidence order would have the effect of ensuring that the minds of potential jurors were not affected by extraneous material, it has the effect of depriving the public at large of information about a matter of public interest and importance, as well as depriving the public of access to the facts surrounding the death of the deceased and why it occurred, except where such information becomes evidence at the trial.
Open justice, though not inviolable, is subject only to few, well-defined exceptions. The requirement that an order under the Court Suppression and Non-publication Orders Act be "necessary" is significant. The right of the media to report on court proceedings and the circumstances that give rise to court proceedings is part of the right of access to the court by members of the public. The media become the eyes and ears of the public, who are entitled to be in the court room, which is why fair and accurate reporting of court proceedings is protected and why, as Spigelman CJ said in John Fairfax Publications Pty Limited v District Court of NSW at [20]:
"Nothing should be done to discourage fair and accurate reporting of proceedings."
The media, of course, sees and hears more than the jury is permitted to take into account in coming to its verdict. For example, the media may interview potential witnesses, as occurred in the broadcast when the ABC interviewed neighbours. The media may gain access to Departmental documents, such as the Draft Child Death Report, which may implicate the executive arm of Government, by its acts or omissions, in the death, or the circumstances preceding it. The media can report on the committal proceedings even though some matters at committal may not be admitted in evidence at trial. When the trial is underway, the media, and the public, are entitled to be present during voir dires from which the jury is excluded. As long as the reporting of these matters does not amount either to a contempt or to an unacceptable intrusion on the accused's right to a fair trial, it is permitted and, indeed, encouraged.
Although Mr Molomby contended that the broadcast was highly prejudicial by reason of its references to the Draft Child Death Report, it is difficult to see why this is so. In so far as the report is referred to in the broadcast it appears principally to concern the limited resources of the Department which meant that the deceased was not visited by a child protection worker in circumstances where, had resources been greater, he would have been the subject of a home visit.
Whether a future jury is likely to abide by the directions given by the trial judge about extraneous material is a relevant matter in deciding whether the test of necessity is met: Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim at [77]. Even if there were matters in the Draft Child Death Report or the broadcast generally that might come to the attention of potential jurors and which deal with matters other than covered by admissible evidence in the case, I would not assume that a jury would not abide by the directions invariably given by the trial judge in a criminal trial. Such directions include a direction that the jurors are to confine their deliberations to the evidence in the proceedings and to disregard anything they might have read or heard about the accused or the circumstances of her son's death in the media or elsewhere. Trial judges also direct jurors not to make any enquiries on the internet or from other sources and that to do so amounts to juror misconduct that could lead to the discharge of the offending juror, and, potentially, the whole jury: s 53A, s 53C and s 68C of the Jury Act 1977 (NSW).
Furthermore I am not persuaded that the common law of sub judice contempt is inadequate to protect the integrity of any trial of the accused if she is committed for trial: Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim at [99]. The ABC, or indeed any broadcaster, will have available to it by way of defence to contempt proceedings the Bread Manufacturer's defence referred to above, which was approved in Hinch v Attorney- General (Victoria) [1987] HCA 56; 164 CLR 15 where, for example, Wilson J said at 41-42:
"In an appropriate case the court is empowered to entertain a defence of discussion of a matter of public interest and in doing so to engage in a balancing exercise to determine which of the competing matters of public interest should prevail.
But it is important to emphasise that in undertaking a balancing exercise the court does not start with the scales evenly balanced. The law has already titled the scales. In the interest of the due administration of justice it will curb freedom of speech, but only to the extent that is necessary to prevent a real and substantial prejudice to the administration of justice."
It is difficult to envisage how publication of such of the contents of the Draft Child Death Report as were revealed in the broadcast could constitute, as Mr Molomby submitted, a contempt. But if they were to do so, I am not satisfied that the common law of contempt would be inadequate, or that I should embark on the balancing exercise that would be engaged in on any charge of contempt, if the broadcaster raised, as it would be likely to do, the Bread Manufacturer's defence.
It is not for me to speculate on the contents of the Draft Child Death Report beyond what was revealed in the broadcast, or whether what was revealed was included in the final version of the Child Death Report. I am not, however, persuaded that there is anything in the references to the Draft Child Death Report in the broadcast that would tend to compromise the fair trial of the accused, in light of the material already contained in the Police Facts Statement. The reasons of the Court below do not, in my view, reveal any satisfactory reason why publication of the circumstances and cause of the deceased's death beyond what forms part of the prosecution case "may be likely to cause prejudice against the accused and impinge on her right to a fair trial", to use the words of Stoddart LCM.
However, even if, contrary to the view I have expressed above, the report was thought to have the requisite tendency to interfere with the fair trial of criminal proceedings, there is considerable force in the submission that that tendency arises as an incidental and unintended by-product of the continuing discussion of matters of public concern: Ex parte Bread Manufacturers Limited: re Truth and Sportsman Limited and Hinch v Attorney- General (Victoria); see also Attorney-General for the State of NSW v X [2000] NSWCA 199; 49 NSWLR 653, particularly at [149] per Spigelman CJ (Priestley JA agreeing). The principal matter of public concern is the sufficiency of funding provided to the Department for the provision of caseworkers to visit children who have been identified as being at risk or otherwise in need. The deceased's death was referred to as a recent, but not isolated, example of the problem.
Furthermore, having regard to the evidence of the deceased's father's consent (prior to his retraction) and the lack of evidence that persons making reports to the Department did not consent, I do not understand there to be any proper basis on which it could be suggested that the ABC, by broadcasting the segment, acted in disregard of the law. There is therefore, in my view, no proper basis to suggest that the prohibitions in the Children (Criminal Proceedings) Act against publication of a child's name or identity or the prohibitions against disclosure of an informer's identity or the substance of a complaint in s 254 of the Children and Young Persons (Care and Protection) Act were insufficient to ensure adherence to the law by the ABC.
Accordingly, I am not persuaded that it is necessary for the first proposed evidence order to be made.
As for the second proposed evidence order, this appears to be based on the disproved proposition that the ABC has failed to have regard to the prohibition in s 15A of the Children (Criminal Proceedings) Act or in s 29 or s 254 of the Children and Young Persons (Care and Protection) Act. There is no need for an order in terms of the second proposed order.
I note for completeness that the ABC did not accept that consent, once given for the purposes of s 15E of the Children (Criminal Proceedings) Act, could be withdrawn, or that, if withdrawn, the broadcaster or publisher of the name was obliged to remove the broadcast and alter it to take account of the withdrawal of consent. It is not necessary for me to decide this question since it is accepted that the ABC redacted the version of the broadcast that remained on the Internet and then removed it completely pending the outcome of these proceedings.
I accept Ms Baker's submission as to the appropriateness of my formally noting that publication of the Draft Child Death Report may, notwithstanding the setting aside of the evidence order, constitute a breach of the prohibition in s 254(1) of the Children and Young Persons (Care and Protection) Act.
The Draft Child Death Report
The ABC also submitted that the Court below erred in holding that the draft Child Death Report (depicted in the broadcast) was capable as a matter of law of being comprehended by the evidence order (ground 8 of the amended summons). In light of my decision that the evidence order in the terms in which it was made ought be set aside, and in light of the lack of opposition to that course, it is not necessary to deal with this ground other than by reference to my reasons for refusing to make the proposed evidence orders which are set out above.
The informer order
The parties' submissions
The ABC submitted that there were fundamental and incurable objections to the informer order which were not overcome by the amendment proposed by the Department (set out below). The objections were:
(1) The order failed to specify the ground or grounds on which it was made (as required by s 8(2)) of the Court Suppression and Non-publication Orders Act);
(2) The order failed to specify the information to which it applies with sufficient particularity to ensure that it is limited to achieving the purpose for which the order is made (as required by s 9(5)) of the Court Suppression and Non-publication Orders Act);
(3) It replicated the prohibition in s 254 of the Children and Young Persons (Care and Protection) Act and was therefore otiose, could not be regarded as "necessary" and fell foul of the principle in MSK referred to above (ground 5 of the amended summons);
(4) Because it prohibits disclosure rather than publication it amounts to a suppression order, rather than a non-publication order and, as such, it is impermissibly wide;
(5) It is uncertain because, among other matters, it is not clear whether, if the consent of the staff member is given but not that of the employer, disclosure of the name of the staff member and the childcare centre is permitted.
The ABC submitted that, if the Court below were persuaded that an order was required to protect the identity of informers, it would be necessary for such an order to be framed by reference to the identity of the actual informers who had not consented to the disclosure so that those bound by the order, including the ABC, would be able to ascertain, from its terms, how to avoid non-compliance with it.
The Department accepted that the informer order was too wide in its current form and contended that it should be amended as follows:
Further, the publication of any information that would tend to identify a person as being a person who has made a report to the Department of Family and Community Services concerning the child the subject of these proceedings prior to his death, unless they have consented to such disclosure, beyond the defendant and her legal representatives and the Director of Public Prosecutions and his servants, agents, and employees, save for the proper purpose of these proceedings, is prohibited. (The proposed informer order)
The Department initially submitted that the identification of the grounds in the evidence order was sufficient to support the informer order and that, accordingly, s 8(1)(a), (c) and (e) ought be read as the applicable grounds for the informer order. However, the Department subsequently accepted that there was no conceivable basis on which either s 8(1)(a) or (c) could be regarded as relevant grounds for the informer order and that s 8(1)(e) was the only available ground. The only relevant public interest was that of the public interest in protecting the confidentiality of informers so that those who provide such information are not dissuaded by fear, exposure, embarrassment or retribution from making reports of misconduct towards children. The Department submitted that I ought infer that s 8(1)(e) was the ground on which the Court below made the order.
The Department submitted that, having regard to the public interest in protecting the identity of informers, it was appropriate that the informer order operate throughout the Commonwealth.
The Department submitted that the ambit of s 254 of the Children and Young Persons (Care and Protection) Act was different from that of the order and that s 254 went beyond criminal proceedings. It sought to distinguish MSK on that basis, where the order in terms replicated s 11, which was the forerunner to s 15A of the Children (Criminal Proceedings) Act.
The Department contended that the informer order was necessary because it might be thought that disclosure of the names of informers, whose names were disclosed in court proceedings was not proscribed by s 254 because of s 254(1)(e), which excepts "lawful excuse". Ms Baker instanced the disclosure of the names of informers in the police statement of facts and submitted that media organisations might consider that, in those circumstances, they had a lawful excuse for revealing such names in a broadcast.
The Department submitted that it was necessary for the order to be in broad terms, rather than to include a list of persons (identified in some confidential fashion, as occurs with police informants) on the ground that, as Ms Baker explained, committal proceedings do not necessarily proceed by calling witnesses one after another and documents may be tendered in bulk. The Department resisted the proposition that the order should descend to the particularity of naming the informers who had not consented and submitted that an order in general terms was necessary in order to give effect to the relevant public interest in preserving the anonymity of informers.
Reasons
The protection, either by suppression or otherwise, of the names of informers of children at risk is a well-recognised exception to the principle of open justice. It is regarded as analogous to the principles that protect informers: D v National Society for the Prevention of Cruelty to Children [1978] AC 171. Having regard to the reach of the Internet and the public interest in encouraging reporting of child abuse, the need for an Australia-wide order can more readily be established, than would be the case for an order based on s 8(1)(a), which has as one of its purposes, to quarantine jurors from extraneous information, lest the accused's right to a fair trial be compromised.
I accept the Department's submission that s 254 of the Children and Young Persons (Care and Protection) Act is distinguishable from the provision considered in MSK since s 254 contains within it the exception of lawful excuse. It is at least arguable that a fair and accurate report of court proceedings in which the name of an informer was disclosed in open court (either in the police statement of facts or otherwise) would be a disclosure that was made with "lawful excuse" within the meaning of s 254(1)(e) and was, accordingly, not proscribed. The broadcaster would merely be acting as the eyes and ears of those members of the public who were not in court when the disclosure was made. In these circumstances the statutory provision and the suppression order do not coincide; indeed the circumstances in which the disclosure is made, in the course of legal proceedings, may themselves establish the exception of "lawful excuse". In these circumstances it is not, in my view, an objection to the making of a suppression order that it would replicate a statutory provision.
Although the Court below, in its reasons, did not address the question whether the fact that the information about informers contained in the broadcast was derived from the police statement of facts, would provide a "lawful excuse" to the ABC, its reasons show that it was aware of the statutory prohibition in s 254 and its apparent breach in the police statement of facts.
Furthermore, it cannot be inferred that Parliament intended to authorise disclosure of informer's names in the present circumstances by including the "lawful excuse" exception in s 254(1)(e) of the Children and Young Persons (Care and Protection) Act. The provision was enacted against the background of the general law, which includes the power of Courts to make suppression and non-disclosure orders and which has long-recognised the privilege to be accorded to informers: Marks v Beyfus (1890) 25 QBD 494.
However, in my view, the difficulty with the proposed informer order is that it is too wide. It casts upon the third parties bound by it the obligation of ascertaining whether the person who made a complaint to the Department has consented to the disclosure of that person's name, or other identifying feature, or the substance of the complaint. It goes beyond what is necessary to protect the public interest in the confidentiality of informers because it fails to specify the people who fall within the category. It also constitutes an unwarranted interference with the principle of open justice since media organisations may be reluctant to disclose matters revealed in open court in circumstances where there is uncertainty whether the person has consented to the disclosure. Furthermore, it would be inimical to the protection afforded to informers to make them susceptible to interrogation by media organisations as to whether they had consented to disclosure.
This difficulty could, in my view, be overcome by a specific order, that applied throughout the Commonwealth, that listed the relevant persons whose identities could be protected by pseudonyms. In that way, the public interest in protecting informers would be accommodated but the public interest in open justice and freedom of speech would be affected only to the extent required for such protection. It would be necessary for such an order to identify s 8(1)(e) of the Court Suppression and Non-publication Orders Act as the ground on which the order was made, in order to comply with s 8(2) of the Act. However, no party sought such an order in this Court. Nor do I have the requisite information to make any such order.
For these reasons, the informer order ought be set aside.
The pseudonym order
The parties' submissions
Neither the accused nor the Department pressed for the retention of the pseudonym order. They accepted that it had no utility. The ABC in detailed written submissions contended that the Court below had no power to make such an order (ground 11 of the amended summons).
Reasons
No statutory source of power was identified for the making of the pseudonym order. The Local Court, as a court of limited statutory jurisdiction, has no inherent power to make such an order. Its implied power to make an order arises only in cases of necessity: John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465 at 476-477 (McHugh JA, Glass JA agreeing). Where, as here, the implication of a power conflicts with the principle of open justice, the test of necessity must be applied strictly: John Fairfax Publications Pty Limited v District Court of NSW at [43]-[51] (Spigelman CJ, Handley JA and M W Campbell A-JA agreeing).
The challenge to the pseudonym order is not to be dealt with under s 14 of the Court Suppression and Non-publication Orders Act since the order was not made under that Act. It must be addressed either in the supervisory jurisdiction of this Court over inferior courts and tribunals or under s 53(3) of the Crimes (Appeal and Review) Act. In the latter event, an appeal is limited to a ground that involves a question of law alone.
I do not consider that it could reasonably be suggested that it was necessary for the Court below to make the pseudonym order. Neither the accused nor the Department contended in these proceedings that it was necessary; indeed, they accepted that it had no utility. In these circumstances I am satisfied that the pseudonym order was made without power. This involves a question of law alone. In these circumstances it is appropriate that it be set aside as a nullity.
The geographical order
The parties' submissions
The ABC submitted that the proper administration of justice could not possibly necessitate an order preventing publication of the matters covered by the evidence order throughout the Commonwealth of Australia. As I propose to set both the evidence order and the informer order aside, and not to make the orders propounded in substitution, or any other orders to similar effect, there is no need to address the question of the geographical ambit of any such orders, beyond the observations I have made above about the different considerations that apply to the evidence order and the informer order in that respect, which may be thought to warrant the latter having a larger geographical ambit.
Costs
I have not heard the parties on costs. Ms Baker, on behalf of the Department submitted that there might be no jurisdiction to award costs and referred me to Fairfax Digital Australia and New Zealand Pty Limited v Ibrahim at [105] (Basten JA). Rather than determine whether I have power to order orders, I propose to make provision in the orders for any party who or which applies for a costs order to do so in writing to my Associate in order that the matter can be the subject of submissions, if need be.
Orders
I make the following orders, direction and note:
(1) Grant leave to appeal the orders made by Stoddart LCM on 23 October 2013 and the pseudonym order made on 4 December 2013.
(2) Set aside orders 2, 4(b) and 6 made by Stoddart LCM on 23 October 2013.
(3) Set aside the pseudonym order made by Stoddart LCM on 4 December 2013.
(4) Direct that any party who, or which, applies for a costs order to make any such application in writing within seven days to my Associate.
(5) Note that any continued or further publication of the Draft Child Death Report referred to in these reasons may, despite the setting aside of the orders made by Stoddart LCM referred to above, constitute a breach of s 254(1) of the Children and Young Persons (Care and Protection) Act.
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Decision last updated: 18 March 2014
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