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

1. 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.

2. 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.

3. 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 are the children of the deceased, [AA], and one Man Monis, now deceased. A third person was mentioned in the media article published last week. She was [DD] (the Accused’s daughter), who was born in November 2000.

4. The concern which the legal representatives for the Accused held last Friday, and as to which the Crown had no objection in an ex parte application being made to the Court, was that there would be further publication of the names of these children who were associated with the trial. There was some question raised, as well, as to the security of one of the children.

5. Having considered the matter urgently in chambers, I caused a communication to be made to the parties, and to the Court's media officer, that in my view, s.15A Children (Criminal Proceedings) Act 1987 appeared to have operation in the absence of any order of the Court. However, for greater certainty, I proceeded to make a non-publication order under the Court Suppression and Non-publication Orders Act 2010 which was to operate until 4.00 pm last Monday with the media to have an opportunity, if they wished, to approach the Court on Monday with respect to that order.

6. That order was in the following terms:

“For the purposes of certainty the Court makes an order under the Court Suppression and Non-publication Orders Act 2010 prohibiting the publication of any information, either directly or indirectly, as to the identity, appearance, address or domestic situation of the Accused’s daughter, [DD], and either of the sons of the deceased, [BB] and [CC].”

7. On Monday, in the absence of any other application, both the Crown and the Accused sought that that order extend until further order of the Court, and I so ordered.

8. The Crown asked, as well, that I make a further order on Monday with respect to the maternal grandparents of the two boys, [EE] and [FF]. I made an order under the Court Suppression and Non-publication Orders Act 2010 prohibiting the publication of any information, either directly or indirectly, as to the identity, appearance, address or domestic situation of [EE] and [FF]. There is no challenge to that order which remains in place and will continue.

9. In the course of Monday afternoon, it became apparent that there was some uncertainty amongst representatives of the media as to whether the orders made by the Court, and the operation of s.15A itself, prohibited the publication of the name of the deceased, [AA]. There were some email exchanges on that topic, which did not resolve the question. It was raised again at the commencement of proceedings yesterday, when Ms Mullins appeared on behalf of Nationwide News Pty Limited, but also, in practical terms, in the interests of the media generally.

10. Submissions proceeded yesterday morning and a point was reached where I indicated that the Court would be assisted by the views of the guardians of the two boys on the issues which remained outstanding. The guardians of the two boys, as it happens, are the maternal grandparents, whose names I have mentioned (at [8] above). An opportunity was provided for them to approach the Court to make submissions.

11. This afternoon, the Court has granted leave to Mr Macarounas of counsel to appear for the guardians of the two boys. The Court has received helpful written and oral submissions from Mr Macarounas and Ms Mullins, and oral submissions have been made on behalf of the parties.

12. It is not necessary to recount the arguments which have been put. It is sufficient to move directly to the issue which requires some consideration by the Court. That is, whether, in the context of the present case, publication of the name of the deceased, [AA], would prima facie appear to breach s.15A Children (Criminal Proceedings) Act 1987 so that the Court can provide guidance, for the assistance of all concerned in the proceedings on that issue.

13. Section 15A is in the following terms:

“15A    Publishing and broadcasting of names prohibited

(1)    The name of a person must not be published or broadcast in a way that connects the person with criminal proceedings if:

(a)    the proceedings relate to the person and the person was a child when the offence to which the proceedings relate was committed, or

(b)    the person appears as a witness in the proceedings and was a child when the offence to which the proceedings relate was committed (whether or not the person was a child when appearing as a witness), or

(c)    the person is mentioned in the proceedings in relation to something that occurred when the person was a child, or

(d)    the person is otherwise involved in the proceedings and was a child when so involved, or

(e)    the person is a brother or sister of a victim of the offence to which the proceedings relate, and that person and the victim were both children when the offence was committed.

(2)    This section applies only to the publication or broadcast of a person’s name to the public, or a section of the public, by publication in a newspaper or periodical publication, by radio or television broadcast or other electronic broadcast, by the Internet, or by any other means of dissemination.

(3)    The publication of information to an Internet website that provides the opportunity for, or facilitates or enables, dissemination of information to the public or a section of the public (whether or not the particular publication results in the dissemination of information to the public or a section of the public) constitutes the publication of information to the public or a section of the public for the purposes of this section.

(4)    This section applies to the publication or broadcast of the name of a person:

(a)    whether the publication or broadcast occurs before or after the proceedings concerned are disposed of, and

(b)    even if the person is no longer a child, or is deceased, at the time of the publication or broadcast.

(5)    A reference in this Division 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.

(6) A reference in this Division to a person who appears as a witness before a court in any criminal proceedings includes a reference to a child who gives evidence in the form of a recording in proceedings in accordance with Division 3 of Part 6 of Chapter 6 of the Criminal Procedure Act 1986.

(7)    A person who publishes or broadcasts the name of any person the publication or broadcasting of which is prohibited by this section is guilty of an offence.”

14. The section is protective in nature in that it is concerned to restrict, if not prevent, the publication and broadcasting of the names of children who are involved in one way or another in criminal proceedings: Application by John Fairfax Publications Pty Ltd re MSK and Others [2006] NSWCCA 386 at [26]-[29] (“John Fairfax Publications”); R v Sam (No. 1) [2009] NSWSC 542 at [12]. Section 15A(5) expands the terms of the prohibition so that it extends reference to the name of a person to include a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

15. There is no question in this case that [BB] and [CC] fall within s.15A(1)(c) and (d). They are children whose names will be mentioned in the course of the proceedings.

16. Put shortly, the Crown alleges that Man Monis wished to have murdered his former wife, the deceased, [AA]. It is the Crown case that Man Monis caused the Accused, Amirah Droudis, to murder the deceased. It is the Crown case that tied up in this event was a desire on the part of Monis (and according to the Crown, the Accused as well), to form a family unit which comprised, amongst others, the two boys.

17. It may be seen then that, as the trial unfolds, the fact that the murder is alleged to have occurred to open the way to access and custody of the boys (so as to form a single family unit), will be a central issue and that this issue will be frequently mentioned in the trial itself.

18. There is material before the Court that indicates that the two boys continue to live in the community under their real names. The fact that the murder is said to have been motivated by a desire to clear the path to having unfettered access and control over those children will be an important part of the trial.

19. Although the names of the boys cannot be mentioned nor anything else, such as their photographs, can be published, the question which presently arises is whether, for the purpose of s.15A, the naming of the deceased will be likely to lead to the identification of the children.

20. It has been made clear by the Courts that s.15A operates of its own accord, and that a separate order of the Court is not necessary. The Court of Criminal Appeal made clear in John Fairfax Publications at [29] that the use of a Court order, in conjunction with the statutory prohibition, may give rise to confusion and that it is not desirable. The section should operate on its own - the provision is “self executing”: John Fairfax Publications at [26]. However, Spigelman CJ observed (at [27]), that to avoid confusion, it would be preferable if the Court, so as to make the public and the media aware of the operation of s.15A, gave directions drawing attention to the obligation imposed by the section, and indicating the manner in which the Court proposed to give effect to it. This is not by way of a separate non-publication order, but by way of giving some guidance or content as to how the section may work in the particular case.

21. In R v BW and SW (No 2) (2009) 196 A Crim R 329; [2009] NSWSC 595, RA Hulme J at 324 [27] did that by indicating what, in his Honour's view, would or would not give rise to a breach of the predecessor provision to s.15A.

22. On behalf of the media, it has been submitted that the Court can merely allow s.15A to stand to do its own work. It has been indicated how the media may approach the issue in the particular case. It has been submitted that the Court should say nothing about how s.15A may be affected by the publication of the name [AA].

23. On behalf of the guardians of the boys, it has been submitted that the Court should proceed to say something on this topic.

24. I accept that there has been in the past a deal of publicity showing the name [AA] as being the victim of the murder with which the Accused is presently charged.

25. Of concern to me is the criminal trial which is about to commence, and the practical operation of s.15A in that context. Lying at the heart of this provision is the need to provide the protection afforded by the law to children mentioned in the context of criminal proceedings. The children will get mentioned, not by name, but by the fact that they were, in a sense, the subject matter of the alleged crime, at least in one respect.

26. The deceased and the children have highly unusual names. I am well satisfied that the name of the deceased is very distinctive and that persons in the community who know the two boys by their names, on hearing the name of the deceased, would be pointed in the direction, effectively, of the two boys, whom they may know through school or through friendships or in some other way.

27. The protection of the law is not perfect in this respect, but the two boys are entitled to the measure of protection which s.15A is intended to extend to them.

28. It seems to me that to approach this case on the basis that publication of the name [AA] would be likely to identify these children does little, if any, damage to the open justice principle. Other aspects of the case, on the face of it, can be published. The very problem lies in her unusual name and that of the two boys.

29. Passing mention was made by Ms Mullins to the possibility that the Court could, under s.15A, authorise the publication of the names of the boys. That would, in my view, fly in the face of the section in the circumstances of this case.

30. If I adopt the approach of indicating that the publication of the name [AA] is likely to identify the boys, then in my view there is no need for any separate order under the Court Suppression and Non-publication Orders Act 2010. I note, as well, my understanding that the past controversy with respect to the name [DD] has for practical purposes been resolved.

31. Mr Macarounas has submitted that, if the Court adopts the course of indicating how s.15A would operate with respect to publication of the name of the deceased, there is no application for any other order under the Court Suppression and Non-publication Orders Act 2010.

32. That brings me back to the position at the beginning of yesterday. I am now well satisfied that s.15A covers each of the three children, namely, the two boys and [DD]. I am satisfied that no separate order under the Court Suppression and Non-publication Orders Act 2010 is required.

33. I do state, however, consistent with the reasons contained in this judgment, that in my view the publication of the name [AA] would tend to identify the children [BB] and [CC], and that such a publication would, on the face of it, be in breach of s.15A Children (Criminal Proceedings) Act 1987.

34. The only order I make is to revoke the order under the Court Suppression and Non-publication Orders Act 2010 made on 5 August 2016, which was continued on 8 August 2016, that being the order which relates to the three children (see [6] above).

35. The non-publication order made on 8 August 2016 with respect to the maternal grandparents continues until further order of the Court.

[Further submissions were made as to whether publication of a photograph of [AA] would breach s.15A]

36. I have heard further submissions as a result of clarification being sought as to whether the photograph of [AA] may be published, even though I have made clear that a publication of her name would breach s.15A Children (Criminal Proceedings) Act 1987.

37. It will be apparent from what I have said that the particular vice, in my view, would flow from the unusual nature of her name, which is shared of course by the two boys.

38. The question, however, is whether in the context of the operation of a protective provision such as s.15A the visual depiction of someone's face, whose name cannot be published, may itself give rise to a chain of identification which could affect the children who operate within their own social network, possibly with persons who formed part of their past social network when their mother was still alive.

39. With the interests of the children in mind, I do propose to indicate that, in my view, a publication of a photograph of [AA] would, on the face of it, be in breach of s.15A(5), being a form of identification of the mother of the two children, the protection of whose identity is the principal issue which the Court has considered.

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Decision last updated: 22 June 2018