R v Diallo (No 1)

[2024] NSWSC 852

Supreme Court

New South Wales

Medium Neutral Citation:

R v Diallo & Ors (No 1) [2024] NSWSC 852

Hearing dates:

1-2 July 2024

Date of orders:

2 July 2024

Decision date:

15 July 2024

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

The Court should not be closed during the pre-trial hearing and the trial itself.

Catchwords:

CRIMINAL LAW – open or closed court – where accused a child at time of alleged offence – where accused adult at time of trial – application of statute – application of authorities – court must remain open to the public

Legislation Cited:

Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 10, 15A, 15A(1)(a), 15A(1)(b)

Cases Cited:

GBB v R [2019] NSWCCA 296

R v JM (No 2) [2024] NSWSC 771

Texts Cited:

N/A

Category:

Procedural rulings

Parties:

Rex (Prosecution)
Ibrahima Diallo (Defendant)
AG (Defendant)
YA (Defendant)
AD (Defendant)
Panashe Morgan Ryan Karise (Defendant)

Representation:

Counsel:
E Balodis and J Sfinas (Rex)
R Wilson SC (Diallo)
M Avenell SC (AG)
W Terracini SC KC and P Kondich (YA)
B Robinson (AD)
M Smith (Karise)

Solicitors:
Office of the Director of Public Prosecutions (Rex)
Crimcorp Defence Lawyers (Diallo)
Sydney Criminal Law Specialists (AG)
King & York Lawyers (YA)
Wiltshire & Wroughton Legal (AD)
McGirr & Associates (Karise)

File Number(s):

2022/00052005; 2022/00051961; 2022/00052010; 2022/00052239; 2022/00091174

Publication restriction:

Statutory prohibition on the publication of the names of the juvenile accused and any material that might identify them. See s 15A Children (Criminal Proceedings) Act 1987 (NSW).

JUDGMENT

1. On the second day of a pre-trial hearing, that is proceeding in advance of the trial of five young men charged with murder, I directed that the Court be open. Because three of the five accused men were under eighteen years of age at the time of the events giving rise to the murder charge, the Court had been closed from time to time during earlier directions hearings and on the first day of the pre-trial hearing. I indicated I would provide reasons for opening the Court at a later date. These are those reasons.

2. The allegation of murder arises from events on or about 1 September 2021. At that stage:

1. The accused known as AD was aged seventeen years and three months.

2. The accused known as YA was around the same age as AD.

3. The accused known as AG was aged seventeen years and seven months.

3. The two other accused men (Messrs Diallo and Karise) were adults at the time of the killing. All of the accused are now adults. AD and YA are now just over twenty years of age and AG is now aged about twenty years and five months.

4. Section 10 of the Children (Criminal Proceedings) Act 1987 (NSW) (“the Act”) provides:

10 Exclusion of general public from criminal proceedings

(1) While a court is hearing criminal proceedings to which a child is a party –

(a) any person (other than a person referred to in paragraph (b) or (c)) who is not directly interested in the proceedings is to be, unless the court otherwise directs, excluded from the place where the proceedings are being heard, and

(b) 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, and

(c) any family victim is entitled to enter or remain in the place where the proceedings are being heard.

(2) While a court is hearing criminal proceedings to which a child is a party, the court may direct any person (other than the child or any other person who is directly interested in the proceedings or a family victim) to leave the place where the proceedings are being heard during the examination of any witness if the court is of the opinion that it is in the interests of the child that such a direction should be given.

(3) A reference in subsection (1) or (2) to criminal proceedings does not include a reference to proceedings held before a court other than the Children’s Court in respect of a traffic offence.

(3A) Despite anything to the contrary in this Act, if criminal proceedings to which a child is a party are proceedings for a prescribed sexual offence (within the meaning of the Criminal Procedure Act 1986) –

(a) sections 291, 291A, 291B, 291C and 294C of that Act apply in respect of the proceedings, and

(b) subsections (1) and (2) of this section do not apply in respect of any part of the proceedings held in camera under section 291, 291A or 291B of that Act, and

(c) a person or persons whom a complainant is entitled to have present near the complainant when giving evidence (under section 294C of that Act) cannot be excluded from, or directed to leave, the place where the proceedings are heard under this section (whether or not the proceedings are held in camera).

Note: Sections 291, 291A and 291B of the Criminal Procedure Act 1986 require certain proceedings, or parts of proceedings, for a prescribed sexual offence to be held in camera. The general rule is that any part of a proceeding in which evidence is given by the complainant must be held in camera (unless the court otherwise directs), and other parts of the proceedings may also be held in camera. The complainant is entitled to have one or more persons chosen by the complainant to be near the complainant when giving evidence under section 294C of that Act.

(4) In this section –

deceased victim, in relation to an offence, means a person against whom the offence was committed and who has died as a direct result of the offence.

family victim, in relation to a criminal proceeding for an offence, means a person who, at the time the offence was committed, was a member of the immediate family of a deceased victim of the offence (whether or not the person suffered personal harm as a result of the offence).

member of the immediate family of a deceased victim means –

(a) the victim’s spouse, or

(b) the victim’s de facto partner, or

(c) a parent or step-parent of the victim, or person having parental responsibility for the victim, or

(d) a child or step-child of the victim, or some other child for whom the victim has parental responsibility, or

(e) a brother, sister, step-brother or step-sister of the victim.

Note: “De facto partner” is defined in section 21C of the Interpretation Act 1987.

5. Section 3 of the Act defines a child as “a person who is under the age of 18 years”.

6. On a plain or literal reading of the text of s 10 itself, the requirement to exclude people who have no direct interest in the proceedings – that is, to close the court to the public – is enlivened when the court is dealing with a person who is under eighteen at the time of the proceedings. That is because the section is directed to “criminal proceedings to which a child is a party.” None of the parties to the present proceedings – including AD, YA or AG – is a child.

7. That construction is strengthened when one considers other sections of the Act. For example, s 15A(1)(a) and (b) prohibit the publication of the name, or material that may identify, a person who is a witness or involved in criminal proceedings if “the person was a child when the offence to which the proceedings relate was committed”.

8. Senior Counsel for AG drew my attention to the recent decision of Dhanji J in R v JM (No 2) [2024] NSWSC 771. In relevantly similar circumstances – that is, the accused was a child at the time of the offence but an adult at the time of the trial – his Honour decided (at [9]) “the Court will not be closed”. His Honour undertook a typically helpful analysis and said at [2]-[4]:

“ …Read literally, the provision requires or is generally described as a closed court where the person is a child at the time the proceedings are being heard but not otherwise. In other words, on the literal reading of s 10(1) the proceedings in the present matter would not be closed.

3. That literal reading results in potentially unusual outcomes. In particular, whether proceedings are held in open or closed court may be the result of happenstance, that is, whether proceedings are held in open or closed court may be impacted by the length of time it takes for any trial to be listed. Circumstances may be such that a trial or other proceeding commences at a time when the accused is a child but continue to a point of the party's 18th birthday, with the result that part of the proceedings would be in closed court and part of the proceedings would be in open court.

4. Whether that is an absurd result may be debatable, particularly when read in the context of s 15A of the Act.”

9. Ultimately Dhanji J did not reach a concluded view on the issue but determined, correctly I think, that he was bound by a decision of the Court of Criminal Appeal in GBB v R [2019] NSWCCA 296. His Honour noted at [9] that he did “not intend in any way to suggest that I would come to some other conclusion were I not so bound”. In fact, his Honour thought “the analysis in which I have engaged would tend to suggest I would come to the same conclusion”.

10. In GBB v R, counsel for the applicant sought an order that the Court of Criminal Appeal be closed to the public for the hearing of his appeal. At the time of the offending the applicant was “some weeks short of his seventeenth birthday” and he was sentenced in the District Court “shortly before his eighteenth birthday”. Basten JA, with whom Macfarlan JA and Campbell J agreed, said (with footnotes omitted):

“3. At the commencement of the proceedings in this Court, counsel for the appellant sought an order closing the court to members of the general public, pursuant to s 10 of the Children (Criminal Proceedings) Act 1987 (NSW). That section provides a general rule, subject to the court directing otherwise, excluding the public from the place where criminal proceedings are being heard, in the case of ‘criminal proceedings to which a child is a party’: s 10(1). The appellant is no longer a child and therefore the statutory exclusion is not engaged by reason of the appellant’s age. Whilst the complainant is still a child, she is not a party to the proceedings.

4. There are circumstances in which the public interest in open justice may be overridden by the closing of the court to members of the general public, even in criminal cases. However, in the absence of powerful considerations in favour of such an order, especially in criminal proceedings, the public interest in open justice will preclude the making of such an order.

5. No submissions were made as to whether the Court Suppression and Non-publication Orders Act 2010 (NSW) (Suppression Orders Act) applied to such an application. It provides for suppression orders, a term defined to mean ‘an order that prohibits or restricts the disclosure of information (by publication or otherwise).’ It is at least arguable that the Act is engaged by an application to prevent people obtaining information as to the proceedings in the court by excluding them from the room in which the proceedings are being conducted. Even if it were not applicable, the statement in s 6 that ‘a primary objective of the administration of justice is to safeguard the public interest in open justice’ would apply and the grounds for making a suppression order contained in s 8(1) would remain relevant considerations.

6. In the present case, the Court was satisfied that the interests of both the appellant and the complainant were adequately protected by s 15A of the Children (Criminal Proceedings) Act, which prohibits the publication of material identifying the person, or likely to lead to his or her identification, in a way which connects the person with the criminal proceedings. The restraint applies where the person was a child when the offence was committed, even if no longer a child at the time of the publication. To assist in compliance with that obligation, neither the appellant’s name, nor that of the complainant is used in these reasons.”

11. Senior Counsel for YA submitted, again correctly I think, that this passage was binding.

12. The text of s 10, a consideration of the different language employed in s 15A, the authorities to which my attention was drawn, as well as the fundamental requirement that our courts remain open to the public, all favoured an order that the Court should not be closed during the pre-trial hearing and the trial itself.

13. There may be specific exceptions to that – for example, if a child is to give evidence or sensitive evidence is adduced – but I formed the firm view that the Court ought not to be closed and made orders accordingly.

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Decision last updated: 04 November 2024