R v Gilson

[2017] NSWSC 989

Supreme Court

New South Wales

Medium Neutral Citation:	R v Gilson [2017] NSWSC 989
Hearing dates:	5 July 2017
Decision date:	05 July 2017
Jurisdiction:	Common Law
Before:	Button J
Decision:	I do not propose to close the Court.
Catchwords:	CRIMINAL – procedure – whether evidence of child witness in murder trial should be given in a closed court – whether a closed court is mandated in such circumstances – whether a closed court is in the interests of justice – evidence not to be given in closed court
Legislation Cited:	Children’s (Criminal Proceedings) Act 1987 (NSW), s 15A Court Suppression and Non-Publication Orders Act 2010 (NSW) Evidence Act 1995 (NSW), s 41
Cases Cited:	Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 Scott v Scott [1913] AC 417 (HL) at 437
Category:	Procedural and other rulings
Parties:	Regina Trudy Jane Gilson (aka Sheiles)
Representation:	Counsel: R Herps (Crown) P McGrath SC (Accused)   Solicitors: Office of the Director of Public Prosecutions (Crown) Legal Aid (Accused)
File Number(s):	2014/344391
Publication restriction:	Nil

EX TEMPORE Judgment

1. The transcript will show that, although the Crown does not press the closing of the Court for the giving of audio-visual link (AVL) evidence by the 15-year-old daughter of the deceased in the murder trial pertaining to his death, nevertheless I understand that the witness would prefer that course to be adopted.

2. There is no statutory provision mandating that. Indeed, unless I am mistaken, there is no statutory provision with regard to the closing of the Court generally (as opposed to the well-known Act that deals with suppression and non-publication orders, the Court Suppression and Non-Publication Orders Act 2010 (NSW)).

3. Having said that, it is undoubtedly the case that I have the power to close the Court if I see fit, and there are some well-known categories that apply to that exercise: see Hogan v Hinch (2011) 243 CLR 506; [2011] HCA 4 at [20]-[21]; Scott v Scott [1913] AC 417 (HL) at 437. But, in the circumstances of this case, despite the wishes of the witness, I do not propose to exercise that power, for the following reasons.

4. First, Parliament has mandated that the Court must be closed in certain circumstances in criminal proceedings involving children and indeed adults. The circumstances here do not fall within any of those parliamentary mandates.

5. Secondly, pursuant to s 15A of the Children’s (Criminal Proceedings) Act 1987 (NSW), there can be no publication of any material that will directly or indirectly identify the child witness. I have already explained yesterday afternoon, for the benefit of persons in the gallery, that if any person were to do that, he or she would be committing a criminal offence and be liable to imprisonment; and I shall now do so again.

6. Thirdly, the child witness will be giving evidence via AVL, and I expect that that process will reduce the possibility of any trauma to her as a result of her needing to give evidence.

7. Fourthly, in light of the fact that a child will be giving evidence pertaining to the violent death of her own father, I am confident that both experienced barristers will approach their task forthrightly but sensitively. As well as that, if some problem arises in that regard, s 41 of the Evidence Act 1995 (NSW) will be firmly enforced by me.

8. Fifthly, I have presided in, and appeared as counsel in, a large number of murder trials over many years in which children have given evidence, including children related to the deceased. I do not believe that I know of any case in which the course sought by the witness has been adopted.

9. Sixthly and finally, it would be a very large step to close a court without parliamentary mandate, and to have proceedings conducted effectively in secret. Although there has been no media interest (as far as I know) in the trial, there has been a reasonably large number of persons in the gallery, and, of course, they are perfectly entitled to see the criminal justice system in operation. I believe that the powerful public interest in open justice should be respected in the circumstances of this case.

10. For all of those reasons, despite the wishes of the child witness that were communicated to me, I do not propose to close the Court.

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Decision last updated: 17 April 2018