R v A2; R v Magennis; R v Vaziri (No. 22)

[2016] NSWSC 73

Supreme Court

New South Wales

Medium Neutral Citation:	R v A2; R v Magennis; R v Vaziri (No. 22) [2016] NSWSC 73
Hearing dates:	5 February 2016
Date of orders:	05 February 2016
Decision date:	05 February 2016
Jurisdiction:	Common Law - Criminal
Before:	Johnson J
Decision:	The non-publication order previously attaching to Kubra Magennis is lifted.
Catchwords:	CRIMINAL LAW – offences of female genital mutilation – where non-publication order made before trial concerning name of accused person pursuant to s.8 Court Suppression and Non-Publication Orders Act 2010 – whether non-publication order should continue following conviction of accused person – necessity of the order to prevent prejudice to the proper administration of justice – necessity of the order to protect the safety of any person – consideration of the public interest in open justice in relation to convicted persons – non-publication order lifted
Legislation Cited:	Children (Criminal Proceedings) Act 1986 Court Suppression and Non-Publication Orders Act 2010 Crimes Act 1900 Criminal Procedure Act 1986
Cases Cited:	---
Texts Cited:	---
Category:	Procedural and other rulings
Parties:	Regina (Crown) A2 (Accused) Kubra Magennis (Accused) Shabbir Mohammedbhai Vaziri (Accused)
Representation:	Counsel: Ms NL Williams (Crown) Mr RF Sutherland SC (Accused A2 and Vaziri) Mr S Bouveng (Accused Magennis)   Solicitors: Office of the Director of Public Prosecutions (Crown) Armstrong Legal (Accused)
File Number(s):	2012/280081 (A2)2012/285455 (Magennis)2012/285639 (Vaziri)
Publication restriction:	---

Judgment

1. JOHNSON J: This judgment concerns the question of whether a non-publication order, presently in place under the Court Suppression and Non-Publication Orders Act 2010 (“CSNO Act”), should continue. The non-publication order relates to KM.

2. KM was charged in 2012 with offences of female genital mutilation contrary to s.45 Crimes Act 1900. Ultimately she stood trial at a trial commencing in September 2015, together with two other persons, A2 and Shabbir Vaziri. KM and A2 were convicted of two offences each under s.45 Crimes Act 1900. Mr Vaziri was convicted of being an accessory after the fact to those offences.

3. On 7 August 2014, a Judge of the District Court made a non-publication order preventing the publication of KM's name and any information tending to reveal her identity. That order was based upon evidence placed before the Court concerning events which had arisen after she had been charged, including conduct which gave rise to a level of harassment and the adverse impact of those matters on her health. I should note that KM is now 72 years old.

4. The matter was then in the District Court following committal for trial, but the various charges were removed to this Court by order of the Chief Justice under s.128 Criminal Procedure Act 1986. The non-publication order was continued by Fullerton J in the Arraignment List on 3 October 2014. The matters came before me on a number of occasions in 2015, both at the pretrial and trial stages.

5. On 9 September 2015, following an indication from me that the issue of the non-publication order ought be examined prior to the trial, further evidence was provided by counsel for KM. That evidence confirmed, in a number of respects, that KM’s health difficulties continued, and that the adverse impact of publication of her name may well impact upon the conduct of the trial itself. The Crown did not oppose the order remaining in place at that time. I took the view, on the basis of the evidence, that the order should remain in place. Of course, KM at that time had pleaded not guilty and the matters had not proceeded to trial.

6. On 12 November 2015, KM was convicted, together with the other accused persons, of the primary charges brought against them, in her case under s.45 Crimes Act 1900. The sentencing hearing has commenced today and is to continue at a later date.

7. In advance of this hearing, I invited the parties to make submissions with respect to the non-publication order in what are now the changed circumstances arising from the conviction by the jury of KM. Written submissions have been made by Mr Bouveng of counsel for KM (MFI 3 on sentence) and affidavits of KM and her husband have been received on the question of the continuation of the non-publication order (Exhibits 1 and 2 on sentence).

8. The Court is urged to continue the non-publication order on the bases identified in the submissions and the evidence, namely, the continuing concerns on the part of KM with respect to potential harassment and impact upon her health.

9. The Crown has submitted today that the verdicts of the jury have changed the position and that the appropriate course is to lift the non-publication order. The Crown submitted that any difficulties which may arise, from publication of the name of KM, are capable of being dealt with by the operation of aspects of the civil and criminal law.

10. The order in question was made under the CSNO Act. As Mr Bouveng rightly points out, there is nothing in that Act that says, with respect to criminal proceedings, that the conviction of a person by a jury is a statutory factor to be taken into account.

11. In this case, the order is sought to be maintained by reference to s.8(1)(a) and (c) CSNO Act. Those provisions allow a court to make a suppression order or non-publication order on grounds including that the order is necessary to prevent prejudice to the proper administration of justice and the order is necessary to protect the safety of any person.

12. Those considerations led to the making of the order originally in the District Court and its continuation up to verdict. It is important to keep in mind, however, that s.6 CSNO Act requires a court, in deciding whether to make a non-publication order, to take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.

13. It was submitted by Mr Bouveng that the continuation of the non-publication order will not cause a difficulty with open justice. There has been an ability to publish all the circumstances of the trial and what KM was charged with and found guilty of, with her name and anything that would identify her being the only areas which are prohibited.

14. In my view, the open justice principle, in the context of the criminal justice system, extends not only to the evidence which is given but to the identity of the accused, certainly once an accused person is found guilty. The presumption of innocence has been displaced by the verdict or verdicts of the jury.

15. That is not to say that the CSNO Act can have no application at all, or that publication of the name of every convicted person must be allowed. There are, of course, exceptions to this, such as a juvenile who is found guilty (s.15A Children (Criminal Proceedings) Act 1986), or a person who is found guilty by a jury but who happens to be someone assisting the authorities and who is going to gaol, as to which there are concerns that would likely fall within the terms of s.8(1)(a) and/or (c) CSNO Act.

16. There is no hard and fast rule. However, it does seem to me that what is necessary now, as part of the balancing exercise in deciding whether this order should continue, is to have regard to the fundamentally different position in which KM now stands.

17. It is the unhappy fact that many persons convicted of offences suffer some public opprobrium and that factor itself may, in an appropriate case, be taken into account on sentence. The difficulties which have been experienced by KM and her husband, with respect to potential public opprobrium, are not ones which point forcefully towards the maintenance of the non-publication order. As the Crown submits, if it be that there is conduct by anyone which gives rise to an interference with the lawful rights of KM, then the law may be called in aid.

18. I have taken into account the affidavits from 2014, 2015 and 1 February 2016. I have considered whether the Court is in a position to conclude that it is necessary that a non-publication order continue in this case. As I have said, an informed consideration, in making that assessment now, has regard to the changed position of KM as a convicted person, and the operation of the open justice principle in the criminal justice system with respect to persons in the position of a convicted person.

19. In all the circumstances, I am satisfied that the appropriate course is to lift the non-publication order which has been in place now since 2014. Accordingly, I direct that the non-publication order made in 2014, and continued a number of times since, be lifted.

20. In taking that course, I emphasise that any publicity which may attach to these proceedings should involve a fair report of the proceedings, in circumstances where submissions have been made today with respect to aspects of the case. The media will be in a position to exercise that function, no doubt in a responsible fashion.

21. The non-publication order previously attaching to Kubra Magennis is lifted.

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Decision last updated: 19 February 2016