R v Cobcroft

[2022] ACTSC 14

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Cobcroft
Citation:	[2022] ACTSC 14
Hearing Date:	2 February 2022
Decision Date:	2 February 2022
Before:	Murrell CJ
Decision:	Order prohibiting publication of the offender’s name revoked
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Commonwealth offence – non-publication order – whether non-publication order should be revoked – whether
non-publication order in the interests of administration of justice – where offender has a young child – consideration of appropriate
weight to be given to harm caused to third party
Legislation Cited:	Evidence (Miscellaneous Provisions) Act 1991 (ACT) s 111
Parties:	The Queen (Crown) Peter Robert Cobcroft (Offender)
Representation:	Counsel
N Purvis (Crown) B Morrisroe (Offender)
Solicitors
Commonwealth Director of Public Prosecutions (Crown)
Boxall Legal (Offender)
File Number:	SCC 144 of 2021
MURRELL CJ:
Introduction

1. Pursuant to s 111(1)(b)(i) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), on 17 September 2020 Magistrate Taylor made an order prohibiting publication of the offender's name.

2.       The offender had sought the order on the basis that publication of his name would affect not only himself but also his young child. At that stage, the proceedings were in the Magistrates Court and the prosecutor was seeking a lengthy adjournment (approximately 16 weeks) to collate evidence. The offender was not in a position to determine the appropriate pleas.

The application

3.       On this application, I am not called upon to consider whether the decision of Magistrate Taylor was correct or incorrect at the time. The question is whether, at this time, it is in the interests of the administration of justice that the offender's name should not be published.

4.       The offender relies upon an affidavit of his wife. In that affidavit, his wife states that

she and the couple's child share the offender’s last name, which is an uncommon

name. The offender's wife infers, as do I, that should the offender's name be published it is quite likely that people connected with the school attended by the offender's child will make the connection between the child and the offender.

5.       Currently, the offender's child does not know the nature of the charges that the offender faces. The offender's wife is concerned that the offender's child will be distressed and embarrassed at disclosure of the offender's name, may be bullied or harassed at school and may develop learning difficulties and face risks to personal safety.

Consideration

6.       While I accept that it is quite likely that a connection will be made between the offender's child and the offender, it is speculative to assert that the child will therefore suffer, either in terms of personal safety or in terms of learning prospects. No doubt, the school authorities will be proactive in protecting the child.

7.       The fundamental rule is that justice should be administered in open court. The argument of the offender is that the mental wellbeing of a family member is an aspect of the interests of the administration of justice. I am not convinced by that argument. But if it is correct then, in my view, the rule concerning open justice should prevail.

8.       The circumstances in which publication of the name of a person may be suppressed generally relate far more closely to the interests of justice as commonly understood. For example, protection may be justified where publication of evidence would reveal confidential policing matters.

9.       If I was to continue the order prohibiting publication of the offender’s name, it would set

a most unfortunate precedent. It is usually the case that, where an offender commits any offence, particularly an offence of a sexual nature, embarrassment is occasioned to the offender's family. That embarrassment is caused by the conduct of the offender, and it is not for the Court to intervene to protect in those circumstances unless there is some special consideration that arises.

10.     No such consideration arises in the present case. It is most unfortunate for the

offender’s family that the offender engaged in the offending conduct, that the offender's

name is not a common one and the connection will most likely be drawn.

11.     However, in the circumstances, the responsibility for protecting the child lies with the

child’s school, family and community, not with the courts.

Order

12.     The application is granted. The order of Magistrate Taylor on 17 September 2020

prohibiting publication of the offender’s name is revoked.

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice.

Associate:

Date: