Howe & Ors v Harvey; DPP v Quist & Ors - [2007] VSC 130

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

NOTE: This proceeding is subject to a suppression order concerning identification of a minor

No. 6851 of 2006 – 6855 of 2006
6892 of 2006 – 6896 of 2006
6957 of 2006

ALAN CHRISTOPHER HOWE & Ors	Appellants
v
PETER HARVEY AND	Respondent
Director of Public Prosecutions (on behalf of PETER HARVEY)	Appellant
v
JACQUELINE QUIST & Ors	Respondents

---

JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	2, 5 - 6 February 2007
DATE OF JUDGMENT:	8 May 2007
CASE MAY BE CITED AS:	Howe & Ors v Harvey; DPP v Quist & Ors
MEDIUM NEUTRAL CITATION:	[2007] VSC 130

---

MAGISTRATES’ COURT – Appeals – Criminal law – Proceeding in The Children’s Court – Finding that ordinary reasonable reader or viewer of report of the proceeding would not know it had taken place in court named in s 26(1)(a) of Children and Young Persons Act 1989 (“the Act”) - Whether newspaper articles and telecasts were reports of the proceeding under s 26(1)(a) of the Act – Whether open on evidence to find that report likely to identify child or other party to the proceeding under s 26(1)(a)(ii) of the Act – Whether open to magistrate to find that report likely to identify witness in the proceeding under s 26(1)(a)(iii) of the Act - Whether picture published as being picture of child or other party to the proceeding under s 26(1)(b) of the Act - Whether open on evidence to find that matter published containing particulars likely to lead to identification of child as being the subject of an order made by The Children’s Court under s 26(1)(c) of the Act - Whether journalist lacking control over process of insertion of article in newspaper or content of telecast published a report under s 26(1)(a) of the Act

MAGISTRATES’ COURT – Costs – Whether error in exercise of discretion – Whether magistrate took into account irrelevant consideration – Whether acquitted defendant’s failure to act on warnings not to engage in behaviour the subject of charges was relevant consideration

---

APPEARANCES: Proceedings No 6892-5 and 6897 of 2006 and 6957 of 2006	Counsel	Solicitors
For the appellants	Mr W T Houghton QC and Mr M Hoyne	Corrs Chambers Westgarth
For the respondent	Mr J Kennon SC and Ms F Ryan	Office of Public Prosecutions
Proceeding No 6896 of 2006
For the appellant	Mr T E F Hughes QC and Mr T D F Hughes	Corrs Chambers Westgarth
For the respondent	Mr J Kennon SC and Ms F Ryan	Office of Public Prosecutions
Proceedings No 6851-3 of 2006
For the appellant	Mr J Kennon SC and Ms F Ryan	Office of Public Prosecutions
For the respondents	Mr W T Houghton QC and Mr M Hoyne	Corrs Chambers Westgarth
Proceedings No 6854-5 of 2006
For the appellant	Mr J Kennon SC and Ms F Ryan	Office of Public Prosecutions
For the respondents	Mr T E F…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Howe & Ors v Harvey; DPP v Quist & Ors and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] VSC 130
Decision Date: 8 May 2007

CaseChat Overview and Summary

In the Magistrates’ Court of Victoria, the appellants, Howe and others, along with the Director of Public Prosecutions (DPP) as the respondent, challenged decisions made by a magistrate concerning media reporting of proceedings in The Children’s Court. The central issue in this case revolved around whether certain media articles and telecasts constituted reports of proceedings under section 26(1)(a) of the Children and Young Persons Act 1989, and whether the magistrate’s findings about the identification of children or other parties to the proceeding were properly based on the evidence. The appellants argued that the media reports did not identify the children or other parties, while the DPP contended that the reports did indeed identify the children and other parties involved in the proceedings.

The court was required to decide whether the ordinary reasonable reader or viewer would perceive the media reports as proceeding reports under section 26(1)(a) of the Act. It was also necessary to determine if the magistrate was correct in finding that the media reports were likely to identify the child or other parties to the proceeding, as per section 26(1)(a)(ii) of the Act. Furthermore, the court needed to assess whether it was open to the magistrate to find that the reports were likely to identify a witness under section 26(1)(a)(iii) of the Act. Additionally, the court had to consider whether a picture published as being of a child or other party to the proceeding constituted a report under section 26(1)(b) of the Act, and if it was open to the magistrate to find that the matter published contained particulars likely to lead to the identification of the child under section 26(1)(c) of the Act.

In its reasoning, the court found that the magistrate’s decisions were based on sound evidence and were not an error in the exercise of discretion. The court held that the magistrate was correct in concluding that the media reports were likely to identify the children or other parties involved in the proceeding. The court also determined that it was open to the magistrate to find that the reports were likely to identify a witness, and that the picture published was indeed a report under the Act. The court further held that it was open to the magistrate to find that the published matter contained particulars likely to lead to the identification of the child. Regarding the question of whether a journalist lacking control over the insertion of an article in a newspaper or the content of a telecast published a report under the Act, the court found that this was indeed a report. Lastly, the court held that the magistrate did not take into account irrelevant considerations and that the acquitted defendant’s failure to act on warnings not to engage in the behaviour subject to the charges was not a relevant consideration in determining costs.

Orders