R v Kevin Peter Krauth No. DCCRM-97-783 Judgment No. D3744

[1997] SADC 3744

R v KEVIN PETER KRAUTH

Criminal
Judge Kitchen

Kevin Peter Krauth was arraigned in the Magistrates Court on 12th September 1997, on an information charging him with, inter alia, 27 counts of indecent assault upon 27 children, contrary to s56 of the Criminal Law Consolidation Act, and 27 counts of, to gratify prurient interest, inducing a child to expose its body contrary to s58A(1)(b) of the Criminal Law Consolidation Act. On that day, an order was made by a Magistrate suppressing until further order, and I quote “any photographs, drawings or films of the accused and any details of the nature of the alleged offending by the accused” the reasons for making that order being and I quote again “in the interests of the administration of justice”.

Krauth pleaded guilty to the counts of gratifying prurient interest. He was committed to this Court for trial on 27 counts of indecent assault, the information for which was filed in October 1997. He was arraigned on 13th October 1997 and pleaded not guilty. On that day an application was made by a representative of the Australian Broadcasting Commission in relation to the suppression order made by the Magistrates Court. The Crown for its part applied for a suppression order pursuant to s69A of the Evidence Act in relation to the proceedings in this Court. The presiding judge, His Honour Judge Lunn, adjourned the Crown’s application for hearing on 16th October 1997. On the adjourned hearing date, His Honour heard submissions by counsel for the DPP, the accused and the ABC. The gravamen of the DPP’s application, was that the victims or some of the victims of the then alleged offences had not been told and did not know they were victims of a crime of a sexual nature or, as I would infer, any crime at all and that the publication of any material which would enable them to become aware they were victims of such a crime would amount to undue hardship to the child, the psychological and other impact on a child victim of a sexual crime being well known. On 17th October 1997, His Honour made an order that until further order the name of the accused and anything tending to identify or describe him and details of his alleged offending in the counts then before the Court be suppressed on the ground that publication would constitute undue hardship to the victims of the offences. His Honour made clear that his order did not relate to the counts which were still before the Magistrates Court, the 27 counts of prurient interest. He also commented that he was not to be taken to have exhaustively considered the merits of the DPP’s application and he did not wish it to be thought he had made “a definitive determination of the issues after full argument”.

On 28th November 1997, the DPP presented an information charging Krauth with seven counts of indecent assault to which he pleaded guilty before me.  Those seven counts were subsequently identified to be representative of the 27 counts of indecent assault for which he had been previously arraigned.

On 1st December 1997, I heard an application by the Advertiser Newspaper and Channels 2, 7, 9 and 10 for whom Mr Short appeared seeking revocation of the suppression order made on 17th October 1997.  Mr Leask appeared for the DPP who opposed the application, an opposition which was supported by Mr Boylan, who appeared for the accused.  I heard their submissions, adjourned the application to give the DPP an opportunity to consider calling evidence from some appropriately qualified expert which the DPP decided he would not pursue and then heard further submissions on 11th December 1997.  Mr Short’s submission, in essence, was that the Court should not be persuaded that the publication of any material from which any one or more of the victims might identify himself as a victim of a sexual offence would amount to undue hardship and if it did then the interest of the public and of the organs of the media in publication outweighed any demonstrated undue hardship.

The nature of and the circumstances in which the offences were committed are summarised in my remarks when sentencing the prisoner.  I will not pause to repeat them now but I incorporate the relevant passages in these reasons.

Section 69A(7) of the Evidence Act provides that on an application for the making, variation or revocation of a suppression order

·....... a matter of fact is sufficiently proved if proved on the balance of probabilities;

·if there is no serious dispute as to a matter of fact, the court may dispense with the taking of evidence and accept the relevant fact as proved.

Mr Short accepted that a child who is the victim of a crime of the kind committed by the prisoner will more likely than not suffer psychological consequences.

The Crown asserted that the identity of some of the children the subject of an offence by the prisoner is unknown.  Having regard to the depositions, the nature and circumstances of the offence and the period of years over which all of the offending occurred I am prepared to accept that to be the case.  Further the Crown also asserted that some of the children depicted in the film or photographs recorded by the prisoner have been identified but have not been told that what the prisoner did to such a child amounted to an offence, or at least not an offence of the kind to which he has pleaded guilty.  As a matter of probability then, I am prepared to accept that some at least of the children involved do not presently know they were the victim of a crime of indecent assault.  I do not consider it is necessary for the Crown to bring forward a parent of an identified child to aver that that child does not know it was the victim of such a crime because that would leave unresolved those children who have not been identified.

If, as it is accepted, a child victim of an indecent assault of the kind which occurred here is more likely than not to suffer psychological consequences of the kind which some of the victims have suffered even, I am prepared to infer, where the child does not know the full extent of the prisoner’s behaviour unseen by the victim, learning of that behaviour would in my view and as a matter of commonsense exacerbate the child’s state.  Similarly a child whose identity has not been established, but who was subjected to the same kind of acts as are present in the seven counts of indecent assault, may well have perceived what he knew the accused did to him as far less threatening to that child than what actually occurred in his presence but behind his back as it were.  Learning of those things would in my view likely traumatise such a child.

In my opinion the publication of any material which would or very likely would, make known to a child the full extent of the prisoner’s behaviour toward him would amount to undue hardship because of the child’s likely reaction to learning those things particularly the threatening and disgusting use (as I judge it to be) to which the prisoner subjected him.

Section 69A(2) of the Evidence Act provides (and I paraphrase) that where the question of making a suppression order is under consideration by the Court, the public interest in the publication of information relating to Court proceedings and the consequential right of the news media to publish such information must be recognised as consideration of substantial weight and the Court may only make an order if satisfied that (inter alia) the undue hardship which would occur to an alleged victim of crime if an order were not made should be accorded greater weight than the public interest in publication and the right of the news media to publish.

While the provisions of s69A(2) do not expressly apply to the variation or revocation of a suppression order, for the purposes of this application and in light of His Honour Judge Lunn’s comment I think it is appropriate to bring into consideration the matters that subsection contains.

On 11th December 1987 I varied the suppression order to exclude from it the publication of the prisoner’s name, the number of offences to which he had pleaded guilty and the legal description of the offences and also the name of his employer.  The information before the Court was that the prisoner had not used his name to a child, there was no suggestion that any child knew his name, and the offences occurred at places remote from the town he resided in.

I have given careful consideration to all that Mr Short submitted.  This is an unusual case in the sense that while the touching of each child by the prisoner in the manner I have described was known to the particular child, the circumstances which made it indecent, particularly the act of masturbation, were unknown to the individual boy.  The right of the news media as a matter of public interest to report the fact and the circumstances of the offences is undoubted and is to be accorded substantial weight but I have reached the conclusion that that right is outweighed by the undue hardship of the kind I have described which would occur, were details of the circumstances and the nature of the prisoner’s crimes to be published and thereby make known, or have the potential to make known, to one or more of the children what in some cases at least, if not all, the child does not know namely that it has been used as an object of indecent and degrading conduct on the part of the prisoner.

I therefore refuse the application to revoke the suppression order or to vary it to any greater extent than it has been varied.

In view of my decision it is not necessary for me to decide whether in exercise of the powers under s22 of the Summary Offences Act a judge of this court may revoke or vary a suppression order made in a Magistrates Court in relation to an information transferred to this Court for sentence following the defendant’s plea of guilty.