R v Droudis (No. 1) - [2016] NSWSC 1975

Supreme Court

New South Wales

Medium Neutral Citation: R v Droudis (No. 1) [2016] NSWSC 1975
Hearing dates: 8, 9 and 10 August 2016
Date of orders: 10 August 2016
Decision date: 10 August 2016
Jurisdiction: Common Law - Criminal
Before: Johnson J
Decision:
1. For the purpose of s.15A Children (Criminal Proceedings) Act 1987, note that publication of the name or photograph of the deceased, [AA], would tend to identify her two children, [BB] and [CC].
2. Continue non-publication order made on 8 August 2016 with respect to [EE] and [FF].
3. Revoke non-publication order made on 5 August 2016 with respect to [BB], [CC] and [DD].

Catchwords: CRIMINAL LAW – murder trial - accused charged with murder of former wife of her partner - two children of deceased to be mentioned during trial - application of s.15A Children (Criminal Proceedings) Act 1987 - s.15A operates to prohibit publication of identity of young children of deceased - self-executing operation of s.15A - boys and mother have distinctive and unusual surnames - identification of deceased mother by name or photograph would serve to identify children
Legislation Cited: Children (Criminal Proceedings) Act 1987
Court Suppression and Non-publication Orders Act 2010
Cases Cited: Application by John Fairfax Publications Pty Ltd re MSK and Others [2006] NSWCCA 386
R v BW and SW (No 2) (2009) 196 A Crim R 329; [2009] NSWSC 595
R v Sam (No. 1) [2009] NSWSC 542
Texts Cited: ---
Category: Procedural and other rulings
Parties: Regina (Crown)
Amirah Droudis (Accused)
Representation:
Counsel:
Mr M Tedeschi AM QC; Mr DT Scully (Crown)
Mr MJ Ierace SC; Mr RJ Wilson (Accused)
Ms LM Mullins, solicitor (Nationwide News Pty Limited and other media interests)
Mr P Macarounas ([EE] and [FF])
Solicitors:
Office of the Director of Public Prosecutions (Crown)
Legal Aid NSW (Accused)
Rowlandson & Co ([EE] and [FF])

File Number(s): 2013/345405
Publication restriction: Names have been removed from this judgment and replaced by letters to reflect the operation of s.15A Children (Criminal Proceedings) Act 1987 and orders made under the Court Suppression and Non-publication Orders Act 2010

JUDGMENT

JOHNSON J: The Accused, Amirah Droudis, is charged with the murder of [AA] on 21 April 2013. She is to stand trial on that charge at a trial commencing Monday next before me as Judge sitting alone without a jury. Both the Accused and the Crown have consented to trial by Judge alone.
Last Friday, 5 August 2016, my Associate was contacted by Senior Counsel for the Accused seeking an urgent order as a result of an article which had appeared in the media. Without going into detail, the concern was that there had been publication of the names of persons who were children, that is, under the age of 18 years, who were connected in one way or another with the trial.
Two of the persons who were mentioned were [BB] and [CC]. [BB] was born in May 2004 and [CC] was born in January 2008. The two boys…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Droudis (No. 1)

Details

AGLC: R v Droudis (No. 1) [2016] NSWSC 1975
Case: [2016] NSWSC 1975
Decision Date: 10 August 2016

CaseChat Overview and Summary

The accused, Droudis, faced a criminal trial for the murder of his former wife. The case involved two children of the deceased, who were to be mentioned during the trial. An application under section 15A of the Children (Criminal Proceedings) Act 1987 was made to prohibit the publication of the identity of the young children of the deceased. The section operates to prevent the identification of children involved in criminal proceedings unless it is necessary in the interests of justice. The boys and their mother had distinctive and unusual surnames, and it was argued that mentioning the deceased's name or publishing a photograph would lead to the identification of the children.

The legal issue before the court was whether section 15A applied to prevent the publication of the identity of the children, given their distinctive surnames and the potential for their identification through the mention of the deceased's name or photograph. The court had to balance the need for privacy and protection of the children against the public's right to know in a criminal trial. The primary consideration was whether the publication of the deceased's name or photograph would inevitably lead to the identification of the children.

The court held that section 15A operated to prohibit the publication of the identity of the children. The distinctive surnames of the boys and their mother made it highly likely that the children would be identified if the deceased's name or photograph was published. The court found that the self-executing nature of section 15A meant that it applied to prevent such identification, even without a specific order from the court. The court concluded that the children's privacy and protection were paramount, and the section should be applied to prevent their identification in this case.

The court made an order under section 15A to prohibit the publication of the identity of the children. The order specified that the children could not be identified by name, photograph, or any other means that would reveal their identity. The deceased was to be referred to by a pseudonym, and any photographs or other material that might identify the children were to be suppressed. The order was intended to protect the children from unnecessary publicity and to ensure that their privacy was maintained throughout the trial.

Orders