R v AA, As, MH and Om

[2009] NSWDC 25

CITATION:	R v AA, AS, MH & OM [2009] NSWDC 25 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	20/2/2009
JUDGMENT DATE:	20 February 2009
JURISDICTION:	District Court of NSW
JUDGMENT OF:	Cogswell SC DCJ at 1
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
SOLICITORS:	Ms D Maher for AS

JUDGMENT

1. The judgment which I am now giving raises a conflict between two very important public interests. One of the public interests is the press covering court proceedings. That includes, of course, members of the press having access to court in order to report on the proceedings. Courts have, in this jurisdiction, been open to the public. The competing public interest which is raised is the interest which the community has in the care and welfare of its children.

2. Those competing public interests have been dealt with in the Act of Parliament which specifically covers children who are prosecuted for criminal offences. That is the Children (Criminal Proceedings) Act 1987. The interests of children who are prosecuted for crimes are acknowledged in that Act of Parliament. In fact, the Act of Parliament requires courts to exercise their functions, having regard to a list of principles contained in s 6 of the Act.

3. Amongst those principles are an acknowledgement that “children who commit offences bear responsibility for their actions but, because of their state of dependency and immaturity, require guidance and assistance.” Another principle is stated as it being “desirable that children who commit offences be assisted with their reintegration into the community, so as to sustain family and community ties.”

4. One way that the legislation protects children - in acknowledgement that their offending behaviour may have been partly contributed to by their immaturity and their need for guidance and reintegration into the community - is to exclude the general public from criminal proceedings in which a child is a party. Section 10 of the Act makes that provision.

5. However, the Act itself strikes a balance between the two competing public interests which I referred to. It provides that anyone who is not directly interested in the proceedings must be excluded from the court. I have directed that that occur in this case, but the section provides an exception. It says that relevantly any person who is engaged in preparing a report on the proceedings for dissemination through a public news medium is, “unless the court otherwise directs, entitled to enter or remain in the place where the proceedings are being heard.” Hence, there is in stark contrast in that section the disentitlement of members of the public to remain in the court proceedings but a specific entitlement of members of the press to remain in court. The specific entitlement of the press is subject to the court otherwise directing.

6. This judgment is necessary because Ms Maher, who appears for one of the offenders in this case, has made an application to me for just such a direction. She is supported in that application by Ms Gallagher, Ms David and Mr Brasch who appear for the other offenders. Mr Thompson, who appears as Prosecutor, very appropriately takes the position that it is a matter for me as to the order which I make and has drawn my attention to various relevant considerations.

7. The application made by Ms Maher alleges a breach of s 11 of the Children (Criminal Proceedings) Act. These sentence proceedings commenced in Parramatta last year. They continued in Sydney on 29 January this year. After the proceedings on 29 January, they became part heard and were adjourned to today. The proceedings on 29 January this year were the subject of items in the public news media.

8. Ms Maher’s application is based upon a claim that two television media breached s 11 of the Act. That provides that the name of a child who is in criminal proceedings – and, I should add, all the offenders in this case are under 18 and therefore children - must not be published or broadcast in a way that connects them with the criminal proceedings. Each of the offenders was, it goes without saying, also a child when the offences to which they have pleaded guilty were committed. The section goes on to explain what it means by the “name” of a child by saying that “a reference to 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.”

9. Briefly, this case concerns four young men who have pleaded guilty to aggravated sexual intercourse with a child aged between ten and fourteen years. The aggravation claimed by the prosecution is that the offenders were in company. The evidence concerns various acts of intercourse which occurred with the victim of the offences in a number of places, including public places such as toilet blocks connected with parks.

10. Ms Maher’s claim is this. After the proceedings on 29 January this year, Channel Seven and Channel Nine, she said, broadcast television news items regarding the proceedings. The image of her client, her client’s face, was pixilated so that it could not be identified. But she said there was a clear side view without pixilation of her client’s father. She argued further that her client was also able to be identified despite some pixilation of his face. She pointed out that her client and his father were very clearly able to be identified.

11. The consequence of that was that her client heard from neighbours and people from whom the family had not heard for years, inquiring about the offender and the offence. He was also approached at his employment. People at his employment did not know about the offences that he was charged with.

12. Ms David says that a similar scenario existed with her client. The images shown on Channel Seven and Nine, she said, could clearly depict her client’s father and her client. Both were pixilated, she acknowledged, but she said it was very clear who they were, especially her client’s father. She said that her client after the television broadcast received communications by text and telephone and personal visits from neighbours and other persons, inquiring about the offence. He was not approached at his work.

13. Mr Brasch said that his client was depicted on the same broadcast, so he was instructed, running away from the court house. I should add that the proceedings on 29 January this year were at the Downing Centre and the claims are that these images were obtained outside the court building. His client, he said, was not pixilated and he said as a consequence a number of his friends were able to identify him, but nobody at work. He said that a neighbour who did not know about his client’s involvement in the offences discovered it and an uncle who previously did not know about it discovered it and it has caused some disruption - indeed, he said, a schism within the family.

14. Ms Gallagher says that her client is not in the same category as having been identified as a result of the television broadcast by persons who did not previously know but nevertheless her client was contacted by people after the broadcast of the television footage.

15. I should say at this stage that these proceedings are not governed by the laws of evidence. The Evidence Act 1995 does not apply to sentencing proceedings unless a direction or order is made otherwise, and no such direction or order has been made in this case. Accordingly, I am deciding this case upon the information provided to me from the bar table, together with a number of exhibits which have been tendered which represent articles downloaded from the Internet: two from the Daily Telegraph posted on 29 January 2009 and one posted the following day by the Sydney Morning Herald.

16. I heard from all parties as to the application, as I said. I was informed by members of the profession that their experience in the Children’s Court was that magistrates on occasions in high profile cases invite the press to make representations. I decided that because there were such significant and conflicting public interests involved in this case that I would invite any member of the press who was present to express their views. Two members of the press did so.

17. One was a representative of the radio media. He indicated correctly that none of the complaints which was made by any of the legal representatives referred to any radio broadcast and he asks that, if I exclude the press, I make an exception for representatives of the radio media. A second submission was made by Jessica Rich from the Nine Network and she made it clear that she was speaking only on behalf of the organisation by which she was employed, namely the Nine Network. She correctly pointed out, which I accept, that what is said about the broadcast of material by the Nine Network were only allegations of non-compliance. Those persons involved in the production of the news stories assured her that all due care was taken, so far as they were concerned, not to identify any of the offenders or relatives of the offenders. She added the relevant news broadcasts have been downloaded and are being brought to court. I have decided that it is in the interests of justice that I resolve this application now, so that the sentence proceedings can proceed to finalisation.

18. There is, or have been, a number of submissions directed to exhibits A1, 2 and 3. It was argued that the headlines of articles published by the Daily Telegraph, which are exhibits A2 and A1, were inappropriate and wrong. They refer to assaults and attackers, but it is acknowledged that there is no allegation that anything published in the print media or electronic media represented any breach of s 11, identifying the offenders. I do not propose to comment any further about those headlines, other than to say that the text of each of the stories does not appear to attract any critical comment.

19. Obviously, one response to Ms Maher’s application is - as Mr Thompson pointed out as an available option – to reinforce with members of the press here their obligations under the Children (Criminal Proceedings) Act not to identify in any way the offenders, and to leave the remedying of any alleged breach of the legislation to those authorities who deal with such matters. I note, for example, that s 11(3) provides that a person who publishes or broadcasts the name of any person in breach of the section is guilty of an offence. Ms Maher and the other legal representatives of the offenders argued that such a response on my part would not be adequate and that what was required was the granting of the application to exclude members of the press.
20. The argument is this. A number of their clients have already been identified by, so they claim, their exposure on television. This has attracted the attention which it is said has already been given by relatives, friends and people at work. What is going to happen next in these proceedings is that I will hear the balance of the arguments about the sentences which I should impose. I will then impose sentences on each of the offenders. The arguments, and especially my remarks on sentence, will canvass obviously the roles which each offender had in the crime or crimes which he committed. That will include some description of the detail of the respective sexual encounters. I will also need to canvass in my remarks on sentence, as any judge does when sentencing an offender, personal information about each offender. That personal information has been made available as exhibits in these proceedings. It includes such things as reports on each offender from the Department of Juvenile Justice and psychological material and other material such as, in one case, a letter from one of the offenders concerning his role in the offence and his reaction to the offence.

21. The argument is that now that the offenders have been identified, this further publication of details concerning their role in the offences and aspects of their personal lives will expose that information to the public. It will, as Ms Maher argued, add to the body of information which has already been circulated. That in turn will further damage the interests of the young men who are the offenders in this case. Ms David, for example, acknowledges the damage which has already been done but argues that excluding the press at this stage will control the damage which has occurred. It would be, she argues, very damaging to expose further information and an order of the sort which she and her colleagues is seeking will put, as she said, a lid on that damage now.

22. I should record that one of Ms Maher’s arguments was that I could have no confidence that members of the press would comply with any further reminder which I gave them of their obligations under the Act, given what she described as a flagrant disregard by some press representatives of their obligations. I repeat, they are matters which are assertions from the bar table, which of course I accept from Ms Maher, but are not the subject of evidence and have been contested in a sense by the representative of Channel Nine. Nevertheless, as I repeat, I need to make this decision on information which I have now.

23. Ms Maher reminded me of the intention of the legislation which deals with offenders who are children when they commit crimes. The policy basis is that young people act from their immaturity, and to some extent they need protection from themselves. It will damage, so the offenders’ representatives argue, their clients’ prospects of rehabilitation and reintegration into the community if the kind of detail which would be exposed in my remarks on sentence were now published. The information could result in damage to the long-term future of the offenders.

24. An argument against the exclusion of the press, which was ventilated by Mr Thompson, is that the damage has already been done and most of the people who found out were people who were already familiar with the respective families. Ms Maher countered that it did not matter who those persons were, the damage is the exposure of information to anyone as a result of being identified from the proceedings.

25. Another factor which I take into account is that exclusion of the press could of course lead to speculation amongst people who already know about the case and already know the details which have already been the subject of publicity, and that that speculation in itself is undesirable.

26. I have decided to resolve the application by, in a moment, giving the direction which is sought. I repeat, it is a difficult matter to decide because of the clash of two such important public interests. I repeat there is a public interest in members of the community being able to sit in court cases. There is a particular public interest in court cases being able to be the subject of press coverage. Indeed, the sentencing principle which relates to generally deterring other offenders must be connected in some way with the fact that other offenders would learn of penalties imposed on some offenders as a result of reading about cases in the press.

27. There is a particular public interest in this case. It is a case concerning sexual offences perpetrated on a young girl in a public place by a group of young men. It is important that members of the public know how the courts deal with such offences. On the other hand, there is the public interest - acknowledged by the legislation - in the community protecting those amongst it who are children.

28. I should add - as an aside at this point - this. The victim in this case was also a child. She was thirteen. I have made little mention of her interests in this judgment. Her interests and protection were violated by the crimes committed against her. As it happens, the violators who have all admitted to their crime were also children. When I come to sentence the offenders, I will take into account the victim impact statement which has been given by the victim in this case. Her interests do not feature in this judgment, because the application is made on behalf of the offenders who are children, and the competing interests are between the community’s desire to protect its children, even those who have committed serious offences, and the community’s interests in the public dissemination of information about court proceedings.

29. I have decided to resolve the matter by excluding the press, because I accept the argument that further reporting of the details which will emerge as this case continues and concludes, will have the potential to compromise the objects of the legislation which include the re-integration of child offenders into the community. The legislation struck a balance which was appropriate between these two public interests. But because - on what I am told and what for the purposes of this judgment I accept - of the exposure of the identity of a number of the offenders, it has resulted in the potential for further damage to all offenders contrary to the policy of the legislation.

30. For those reasons, under s 10(1)(b) of the Children (Criminal Proceedings) Act 1987 I direct the exclusion from this court of all persons who are engaged in preparing reports on the proceedings for the dissemination through public news media. So, members of the press, I am afraid for the reasons that I have just given, you have got to go.

oOo

16/03/2009 - Missing counsel name - Paragraph(s) N/A