In the Application of S for a Suppression or Non-Publication Order

[2013] NSWLC 1

Local Court

New South Wales

Medium Neutral Citation:	In the Application of S for a Suppression or Non-Publication Order [2013] NSWLC 1
Hearing dates:	15/02/2013
Decision date:	15 February 2013
Jurisdiction:	Criminal
Before:	Magistrate P.S. Dare SC
Decision:	Application for suppression/non-publication order dismissed
Catchwords:	PROCEDURE - criminal proceedings - application for suppression/non-publication order - applicant the defendant in proceedings before Local Court and Children's Court - statuory prohibition on publication of applicant's name in context of Children's Court proceedings - whether publication of applicant's name as a defendant in Local Court proceedings would identify him as a defendant in Children's Court proceedings - whether order "necessary" per s 8 Court Suppression and Non-publication Orders Act 2010 - separate conduct of Local Court and Children's Court proceedings - order not necessary - application dismissed
Legislation Cited:	Children (Criminal Proceedings) Act 1987 Court Suppression and Non-publication Orders Act 2010 Crimes Act 1900 Criminal Code Act 1995 (Cth)
Cases Cited:	Hogan v Australian Crime Commission (2010) 240 CLR 651 John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344 R v Macfarlane; Ex parte O'Flanagan and O'Kelly [1923] HCA 39; (1923) 32 CLR 518 Rinehart v Welker [2011] NSWCA 403 Scott v Scott [1913] AC 417
Category:	Interlocutory applications
Parties:	S (the Applicant) Police
Representation:	Mrs R Power for the Applicant Sergeant D Middleton for the Informant
File Number(s):	2013/43777
Publication restriction:	Section 15A, Children (Criminal Proceedings) Act 1987

Judgment

1. This is an Application on behalf of S for a Suppression Order or, in the alternative, a Non-publication Order, so as not to identify him as a Defendant in proceedings listed both before Young Local and Children's Courts on 19 February 2013.

1. The Applicant was born in 1994. It is not necessary to nominate his date of birth with any greater precision. On 16 January 2013, he was charged with the following offences in the Children's Court jurisdiction -

Seq	Date alleged	Title of Offence
1.	31/7/2012	Make false call to an emergency service number (000) Section 474.18(1) Criminal Code Act 1995 (Cth)
2.	14/8/2012	Make false call to an emergency service number (000) Section 474.18 (1) Criminal Code Act 1995 (Cth)
3.	Between 2/12/2012 and 9/12/2012.	Dishonestly obtain financial advantage by deception Section 192E (1)(b) Crimes Act 1900

1. On 30 January 2013, the Applicant was charged with the following offences in the Local Court jurisdiction -

Seq	Date alleged	Title of Offence
1.	Between 2/12/2012 and 20/12/2012	Dishonestly obtain financial advantage by deception. Section 192E (1)(b) Crimes Act 1900
2 to 19 incl.	On various dates between 21/8/2012 and 20/12/2012.	Make false call to an emergency service number (000) Section 474.18(1) Criminal Code Act 1995 (Cth)

1. As I mentioned earlier, all these charges before the Children's Court and Local Court are listed for the first time on 19 February 2013. Accordingly, I have not seen Facts Sheets at the time of this Judgment. For present purposes, it is not really necessary that I do so. It is fair to assume, however, from the recitation of the charges themselves that the Applicant is alleged to have been a Retained Fire Fighter who made numerous false calls to 000 and then claimed and obtained payment for his services in attending the scene of the purported emergencies.

1. The crux of the Application is set out in correspondence from the Applicant's solicitors in the following terms -

We wish to apply for a suppression order, or at the very least, a non-publication order in relation to this matter. In particular we are seeking that our client's name not be published on the court list to be displayed at the front of the courthouse on 19th February 2013. We submit that in doing so, our client's identity as a defendant in the children's court will be disclosed due to the following factors:

1.Young is a relatively small town;

2.[S]'s family is well known throughout the town;

3.NSW Police issued a media release and posted details of these offences on their Facebook page when [S] was initially charged. His identity was not revealed at that time as he was a child at the time of the commission of some of the alleged offences; and

4.Both local and national media have already broadcast details of this matter when our client was first charged but also did not disclose his identity as it was noted he was a child at the time of the commission of some of the alleged offences.

1. The jurisdiction of the Local Court to entertain such an Application is provided for in section 3 of the Court Suppression and Non-publication Orders Act 2010. The Act sets out in section 6 that a Court must (not may) take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice. The granting of any such order is discretionary but by reference to the statutory guidelines.

1. Section 8 sets out the grounds for making an order. It is worthwhile setting out that provision -

(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;

(b)The order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security;

(c)The order is necessary to protect the safety of any person;

(d)The order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency);

(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.

1. The Applicant is clearly a "party" to proceedings and is entitled to appear and be heard by the Court on an Application, as is the Police Prosecutor who appears for the Informant as well as any news media organisation: section 9(1)-(2).

1. The upshot of the Applicant's case is that to identify him as a Defendant in the Local Court is to identify him as a Defendant in the Children's Court. The principals relating to the identifying of juveniles before a Court are well known. Procedurally, there is no Children's Court List placed on display outside a Court. Charges are heard in a closed Court from which the general public are excluded. News media representatives are often present to report the fact of an incident but not the identity of the alleged young offender. Generally, see also Division 3A Children (Criminal Proceedings) Act 1987.

1. It is not unusual for an alleged offender to find himself (or herself) before a Local Court and a Children's Court on the same day whether for similar or different offences. It is commonplace and proper procedure for the Children's Court matters, first, not to appear on any publicly displayed list and, secondly, to be dealt with in a closed court. The Local Court charges are dealt with in an open court. In that way, the identity of an alleged young offender before the Children's Court is protected. It might seem somewhat artificial but it works. As an alleged adult offender, the Applicant is entitled to no such protection.

1. The meaning of "necessary" as set out in section 8 was considered by the Court of Appeal in Rinehart v Welker [2011] NSWCA 403 in the joint judgment of Bathurst CJ and McColl JA where their Honours said that Section 6 reinforces the legislative intention that an order should only be made in exceptional circumstances, a provision which prevailed at common law: John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344.

1. The clearest statement, and that which appears to underlie the form of section 8, appears in John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 (at 476 - 477) per McHugh JA (Glass JA agreeing):

"The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice . The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication. Mere belief that the order is necessary is insufficient." (Emphasis added)

1. The necessity requirement may also be stated by quoting Mr Justice Isaacs statement in R v Macfarlane; Ex parte O'Flanagan and O'Kelly [1923] HCA 39; (1923) 32 CLR 518 (at 549) (approved by the plurality (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) in Hogan v Hinch (at [87]):

"The final and paramount consideration in all cases is that emphasized in Scott v Scott namely, 'to do justice' (Viscount Haldane LC). All other considerations are means to that end. They are ancillary principles and rules. Some of them are so deeply embedded in our law as to be elementary and axiomatic, others closely approach that position. Of the latter class is publicity, which can only be disregarded where necessity compels departure, for otherwise justice would be denied to those whom Earl Loreburn termed 'the parties entitled to justice.' "

1. Significantly, an order is not "necessary" if it appears to the court "to be convenient, reasonable or sensible, or to serve some notion of the public interest, still less that, as the result of some 'balancing exercise', the order appears to have one or more of those characteristics": Hogan v Australian Crime Commission (2010) 240 CLR 651 at [31].

1. Their Honours in Rinehart v Welker (supra) cited with approval the speech of Viscount Haldane VC in Scott v Scott [1913] AC 417 at 437-438 in dealing with the aspect of "open justice" and applying that to the operation of section 6, as follows:-

"As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity.

He who maintains that by no other means than by such a hearing can justice be done may apply for an unusual procedure . But he must make out his case strictly, and bring it up to the standard which the underlying principle requires. He may be able to shew that the evidence can be effectively brought before the Court in no other fashion. He may even be able to establish that subsequent publication must be prohibited for a time or altogether. But this further conclusion he will find more difficult in a matrimonial case than in the case of the secret process, where the objection to publication is not confined to the mere difficulty of giving testimony in open Court. In either case he must satisfy the Court that by nothing short of the exclusion of the public can justice be done. The mere consideration that the evidence is of an unsavoury character is not enough, any more than it would be in a criminal Court, and still less is it enough that the parties agree in being reluctant to have their case tried with open doors. " (Emphasis added)

1. I fully appreciate that the identification of the Applicant in the Local Court charges will doubtless be the subject of media publicity. This will bring attendant embarrassment not only to the Applicant but to his family. However, I fail to see how this would serve to identify him in the Children's Court matters if the prescribed safeguards are applied as they will be. There is little a Court can do about rumour-mongering in "a relatively small town."

1. In my view, the Applicant has failed factually to demonstrate to any extent, let alone exceptional, that his circumstances fall within the meaning of section 8(1) of the Court Suppression and Non-publication Act 2010, such as to warrant the making of any order as a matter of law. The Application is dismissed.

Magistrate P.S. Dare SC

Young Local Court

15 February 2013

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Publication note: the Applicant's name is not published so as not to identify him as the defendant in the Children's Court proceedings described at [2].

Decision last updated: 20 February 2013