R v AA, As, MH and Om

[2009] NSWDC 40

CITATION:	R v AA, AS, MH & OM [2009] NSWDC 40
HEARING DATE(S):	27/2/2009
JUDGMENT DATE:	27 February 2009
JURISDICTION:	Criminal
JUDGMENT OF:	Cogswell SC DCJ
DECISION:	Application to exclude the media from the court under s10(1)(b) of the Children (Criminal Proceedings) Act 1987 is granted
CATCHWORDS:	Criminal law - Sentence - Juvenile offenders - Aggravated sexual intercourse with a child between 10 and 14 years - Alleged identification of offenders by the media - Application to exclude the media from the court - Protection of children - Public interest in court proceedings
LEGISLATION CITED:	Children (Criminal Proceedings) Act 1987 Evidence Act 1995
PARTIES:	Regina AS, AS, MH & OM
FILE NUMBER(S):	2008/10599; 2008/10600; 2008/10601; 2008/10602
COUNSEL:	Mr P Thompson for the NSW DPP Ms J Gallagher for OM Ms P David for MH Mr L Brasch for AA Ms D Maher for AS

JUDGMENT

1 A week ago on 20 February 2009 I made an order under s 10(1)(b) of the Children (Criminal Proceedings) Act 1987 directing the exclusion from court in these proceedings of all persons who are engaged in preparing reports on the proceedings for the dissemination through the public news media. I made that order for reasons which I delivered at the time and which are now published under R v AA, AS, MH, and OM [2009] NSWDC 25.

2 Today Mr Sibtain of counsel sought leave to appear for his clients, the Seven Network Operations, Nine Network and Nationwide News. I granted him leave.

3 His application, after having been granted that leave was, in effect, for the media to be permitted to remain in court. He was re-agitating the application made last week for the exclusion of the media under s 10(1)(b). I regarded the re-agitation of that issue as appropriate because the media were not represented by counsel last week. I do not propose to repeat the matters which are set out in my judgment delivered last week.

4 Today the application made by Ms Maher was supported by evidence. She called her client. He gave evidence of what he had seen on television on 29 January 2009. I do not need to refer to that evidence because we saw the footage. He gave evidence that when he returned home that evening he turned on the television and saw what he described. Within two minutes he received a phone call from a school friend, whom he had not spoken to for some two years, who said he saw him on TV. There is some question about whether that school friend might have known in any event about this offender’s involvement in the proceedings. However, ten minutes later he received another phone call from somebody he used to work with some months before, who said he had seen the offender and his father on television. Later in the same evening the offender went outside and saw a neighbour. The neighbour told him that he had seen him on television. The offender had no reason to believe that either the former workmate or the neighbour had any information about his, the offender’s, involvement in the offence.

5 The offender went to work the following day. When he arrived at work two of his bosses approached him and told him they had seen him on TV. Once again, the offender had not provided any information about his involvement in the offence, nor did he have any reason to think that those at work knew about it. One of the bosses commented that the offender’s involvement in the crime must be the reason why he had so many days off. He was given two weeks’ notice. He also gave evidence that footage which was shown on Channel Nine is still on the Nine MSN website.

6 Mr Sibtain called Jessica Rich, a journalist with the Nine Network. She was the person who reported on the story on 29 January 2009 for her network and, as she said, put the story together. She confirmed that a DVD, which was tendered through her and became exhibit A3, was, with one exception, a full copy of what was broadcast on 29 January 2009. The exception was the introduction by the newsreader, who accompanied that introduction by a couple of paragraphs of narrative. She confirmed in cross-examination that Sky News would have similar footage to Channel Nine and that the Nine MSN site would, as far as she was concerned, not exercise any editorial discretion over information which they received from the Nine Network.

7 I viewed exhibits A4 and exhibit A5, the Channel Nine and Channel Seven news broadcasts respectively, on 29 January 2009. I, myself, was not left with the impression that the offenders were able to be readily identified. The process of blurring or pixelating the features of persons on TV was used in the broadcast and they were used in respect of each of the offenders.

8 Nevertheless, I am left with the position that the offender who gave evidence was contacted and spoken to by people who, so far as he knew, did not know about his involvement in the offence. As Ms Maher, who appeared for that offender, pointed out, there was clearly a temporal connection between the news broadcast and those approaches and observations. I would be satisfied that the persons who approached the offender knew of his involvement as a result of what they had seen on television. Indeed, a number of the persons said as much by making reference to what they had seen on the news.

9 In agitating his application, Mr Sibtain reminds me of the fundamental importance of the right of public access to the courts and the significance of that right being expressed, or being exercised, by members of the press. He referred me to John Fairfax Publications Pty Limited v The District Court of New South Wales (2004) 61 NSWLR 344, a decision of the Court of Appeal, and to An Application by John Fairfax Publications Pty Limited re MSK, MAK, MMK and MRK [2006] NSWCCA 386, a decision of the Court of Criminal Appeal, and to a judgment of Studdert J in R v LMW [1999] NSWSC1111. Mr Sibtain also referred me to other authorities referred to in those respective judgments.

10 One principle he extracted from the authorities was that an order prohibiting the publication of evidence, for example, to be valid must be really necessary to secure the proper administration [of justice] in proceedings before it. Another principle referred to was that it is only in highly exceptional circumstances - where the presence of the public or public knowledge of the proceedings is likely to defeat the paramount duty of the courts - that the courts may proceed in camera. Mr Sibtain argued that those necessary and exceptional circumstances must be the starting place for my consideration of his application and that it is not merely a matter of a balancing exercise in weighing up the respective merits of the various public interests at stake. He points to the fundamental constitutional importance of the right of public access to the courts as having some predominant weight in my approach to his application.

11 I find that the TV stations which made the broadcasts which I viewed clearly took some effort not to identify the offenders involved, but I also find that those efforts were not completely effective. I have evidence before me, which I accept, of the fact that one of the offenders was contacted by the persons to whom I have referred, who did not know about his involvement in the offences. Mr Sibtain argues that I need to see that in the context that the persons who contacted him may have some prior knowledge of him in the sense of knowing him as a person and therefore being able to more readily identify him on television. In referring to the obligations on his client to comply with s 11 of the Children (Criminal Proceedings) Act, he points to a need to avoid extreme or ludicrous examples of what might lead to exposure of persons whose identity is meant to be suppressed. Section 11(5) provides that 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.” He submits, and I accept, that the test is an objective one. Nevertheless, I do not accept that the test is in some way limited to persons who do not know already the identity of the person whose identity is meant to be concealed. He did not make that submission in terms but, in my opinion, the purpose of the legislation, or at least this provision in the legislation, is to protect the identity, or prevent the disclosure of the identity, of young persons to anyone who may know them or otherwise. Indeed, it may be that more damage is done by the disclosure of information about a young person to those who know him. An example may well be in the context of employment.

12 The obligations of anyone, not just the media, are to comply with the provisions of the Act. It clearly provides that nothing is to be published that identifies the young person or is likely to lead to the identification of the person. That requires some judgment and assessment and consideration of the real likelihood that the publication which is to be made would lead to the identification of the person. As I say, it seemed to me that the media involved in this case clearly went to some effort to comply with their obligations under the law but, at the same time, I find that those efforts were not effective enough in the case of the offender, whose evidence I have heard, to prevent his identification.

13 I approach the resolution of this application by focussing on my task. My task is to apply the Children (Criminal Proceedings) Act. In particular, the application is made under one of the provisions of that Act. I am asked by Ms Maher, and supported by counsel for the other offenders, to exclude the press. What I am being asked to do is to exercise a specific statutory power. The Act is not a general Act such as the Crimes Act or the Criminal Procedure Act. The Act is a piece of legislation which deals specifically with children and with the interests of children. The specific focus of the Act is with children who have committed crimes and are being prosecuted.

14 To my mind, in making my decision, I need to give weight to the public interest in the press reporting on these proceedings. That weight I referred to in the judgment which I delivered earlier and is able to be more clearly articulated by reference to the authorities which have been drawn to my attention today. One of the authorities, namely John Fairfax v The District Court, at [19] of the Chief Justice’s judgment, referred to the exceptions to the principle of open justice being few and strictly defined. His Honour went on to say: “It is now accepted that the courts will not add to the list of exceptions but, of course, Parliament can do so, subject to any constitutional constraints.”

15 There is no suggestion of any Constitutional constraint on Parliament so far as the provision in question in this case is concerned. But the point made by the Chief Justice was emphasised by Ms Maher: that we are dealing with a specific piece of legislation where Parliament has turned its mind to a particular interest in the community and made specific provision. The entitlement of the press to remain in court is, as I said last week, established by s 10(1)(a)(b). It is established, perhaps because of the provision in s 10(1)(a) which excludes persons from the proceedings, but then provides, by way of exception, that members of the press are entitled to remain unless the judge otherwise directs.

16 I accept Ms Maher’s submission that I should interpret the exercise of the power which I am asked to exercise, or approach the exercise of the power which I am asked to exercise, by reference to the principles set out in s 6 of the same Act. She, for example, refers to the provision in s 6 regarding the desirability to allow the employment of a child to proceed without interruption and the desirability of a child to reside in their own home and the desirability of children to be reintegrated into the community. Her submission I accept because s 6 provides explicitly that a “person or body that has functions under this Act is to exercise those functions having regard to the following principles”. I therefore have regard to the s 6 principles and, in particular, the ones referred to by Ms Maher.

17 As it happens, in the evidence before me one of the offenders has been confronted by a neighbour with information about his involvement in the offence and has also been confronted in his employment. The protection which is meant to be afforded by the legislation, by reference to those principles regarding the home and the employment, has, in this case, been compromised.

18 I am still convinced by Ms Maher’s argument. I still regard the further reporting of details which will emerge from my remarks on sentence as having the potential to compromise the objects of the legislation. They include the matters which I have referred to just then by reference to Ms Maher’s citation of s 6. The information which would be forthcoming as a result of a reporting of the details which will be contained in my remarks on sentence will, in my opinion, result in the potential for further damage to the offenders, which will affect some of the aims of the legislation in protecting them, as under-aged persons, from exposure to the public.

19 I will make a couple of concluding observations before I announce my order. I found the judgment of Studdert J in LMW to be, with respect, very helpful. I do note, however, that it appears that his Honour was dealing with an application to order persons to leave the court whilst evidence of a particular witness was being given. His Honour emphasised the importance of approaching the exclusion of members of the public by reference to the need for that to happen only in wholly exceptional circumstances and, in that case, his Honour could find nothing which measured up to that criterion which would warrant his exercising his power. I regard the question in this case to be broader, namely the interests of the offenders which are designed to be protected to the extent that Parliament regards as appropriate by the laws which it has made in this Act, and I regard that protection as having been compromised and, more importantly, as likely to be further compromised by further publication of information.

20 One final observation is, I repeat, that nothing that I have said should be construed as suggesting that I have formed the view that any of the news media has committed a breach of s 11 of the Children (Criminal Proceedings) Act. I repeat, it seemed to me that they made some effort to conceal the identity of the persons but, as it happens, those efforts were not effective enough - given the evidence which is before me - to result in this offender not being identified.

21 For the reasons which I have just given, I therefore direct that any person who is engaged in preparing a report on the proceedings for dissemination through a public news medium is to leave the court.

22 There is one other thing I have not ruled on. I propose to re-open the court for the announcement of my sentence. When I sentence these offenders, I propose to allow the media back in. That is because there will be nothing in the terms of the sentences themselves which, in my opinion, would compromise the objects of the Act in the ways that I have referred to. So, in due course, I will re-open the court to the media.

23 SIBTAIN: Your Honour, may I raise one matter, and I hope your Honour doesn’t understand any discourtesy from what I am putting?

24 HIS HONOUR: No, go ahead.

25 SIBTAIN: In your Honour’s reasons, your Honour referred to the evidence of one of the offenders as to identification.

26 HIS HONOUR: Yes.

27 SIBTAIN: I understand, from what your Honour has just said, that you will be sentencing all the offenders at the same time.

28 HIS HONOUR: I will.

29 SIBTAIN: Did your Honour intend to exclude the media during the sentencing of those who have not been identified as well?

30 HIS HONOUR: Yes.

31 SIBTAIN: As your Honour please.

32 HIS HONOUR: All right, anything else on the application?

33 MAHER: No.

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