R v Newman - [2010] SASC 82

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal)
R v NEWMAN
[2010] SASC 82
Ruling of The Honourable Justice Kelly
31 March 2010
EVIDENCE - PROHIBITION OF PUBLICATION OF EVIDENCE - IDENTIFICATION OF PERSONS
Suppression order – respondent sentenced for murder – originally charged with a co-accused who was a juvenile – juvenile acquitted – application to revoke suppression order in relation to image and name of respondent.
Held: Application allowed – suppression order revoked and further suppression order permitting the publication of name and image of respondent permitted.
Evidence Act 1929 (SA) s 69A; Young Offenders Act 1993 (SA) s 63C, referred to.

R v NEWMAN
[2010] SASC 82
Criminal

KELLY J On 21 January 2010 Garry Francis Newman was found guilty of the crime of murder after a trial by jury.
Mr Newman (“the respondent”) was originally charged with a co‑accused, his son (“the junior accused”) who at the date of the murder was a juvenile.
On 23 February 2009, before the joint trial of both the respondent and the junior accused, another Judge of this Court made a suppression order suppressing from publication any oral or written description of the older accused (the respondent), or any photographic image or pictorial image that identifies or tends to identify the older accused (the respondent) until further order.
The defence of the junior accused was based in a large part on certain admissions made by him to a number of people who were called as prosecution witnesses. The junior accused made statements to those witnesses to the effect that he accompanied his father to Adelaide and was present at the time when Ms Ryan was murdered, but apart from assisting the respondent to dispose of certain items belonging to Ms Ryan after the event, was not involved in any way with her death.
At the time of the murder the junior accused was 17 years and three months. He was acquitted of murder and of the alternative charge of manslaughter.
In light of that background, it is now appropriate for this Court to consider whether the suppression order made on 23 February 2009 ought to be confirmed, varied or revoked altogether, or whether any other order under the provisions of the Young Offenders Act 1993 should be made. Section 63C states:
(1)A person must not publish, by radio, television, newspaper or in any other way, a report of proceedings in which a child or youth is alleged to have committed an offence, if—
(a) the court before which the proceedings are heard prohibits publication of any report of the proceedings; or
(b) the report—
(i)identifies the child or youth or contains information tending to identify the child or youth; or
(ii)reveals the name, address or school, or includes any particulars, picture or film that may lead to the identification, of any child or youth who is concerned in those proceedings, either as a party or a witness.
(2)The court before which the proceedings are heard may, on such conditions as it thinks fit, permit the publication of particulars, pictures or films that would otherwise be suppressed from publication under subsection (1)(b).
(3)A person who contravenes this section, or a condition imposed under subsection (2), is guilty of an offence.
Maximum penalty: $10 000.
At the hearing of submissions in relation to this application, there was no appearance on behalf of the respondent, he having been previously excused from appearing. Although counsel for the Director of Public Prosecutions appeared, the Director did not seek to make any submissions on this particular application. Submissions were made on behalf of counsel for the junior accused and by representatives from The Advertiser newspaper and Channel 10.
The junior accused opposes the revocation of the order on the basis that the publication of the name of the respondent would have the tendency to identify the junior accused as well. Counsel for the junior accused submitted that even though the junior accused was acquitted, and in one sense is no longer a party to the sentencing proceedings in relation to the respondent, nevertheless the allegations involving the respondent are so inextricably bound up with the allegations involving the junior accused that to identify the respondent would in effect tend to identify the junior accused.
Counsel for the junior accused also made the point that both the mother and another son of the respondent are also concerned about the prospect of publication of the respondent’s name because of the potential impact upon them as well.
The older son of the respondent was in fact called as a prosecution witness at the trial. The mother of the respondent was referred to in numerous telephone calls made by the respondent to her from the prison. These conversations formed part of the evidence at the trial. In that sense therefore other family members of the respondent as well as the junior accused were in a sense also inextricably involved with the evidence presented against the respondent at the trial.
It must be acknowledged that any order to release the name and image of the respondent will to some extent, impact adversely on other members of his family. In this respect this case is no different from many others that come before this Court. It is yet another way in which family members of people who commit crimes are adversely affected.
No application on their behalf was ever made under the provisions of s 69A of the Evidence Act. In any event I note that the considerations in relation to whether suppression orders ought to be made in relation to that category of witness are quite different to the considerations which apply in relation to a juvenile co‑accused.
The issue which arises here is whether having regard to the provisions of the Young Offenders Act, it is necessary to continue to suppress the image and name of the respondent insofar as publication might tend to identify the junior accused who has been acquitted of any offence. Accepting for the purpose of the argument that s 63C(1) of the Young Offenders Act still applies to the sentencing proceedings involving the respondent the question which arises is whether given the events which have unfolded the Court should exercise the discretion in s 63C(2) of the Young Offenders Act to permit publication of the image and or the name of the respondent.
It is correct as counsel for the junior accused pointed out during submissions that the allegations in this matter have attracted a great deal of publicity. Part of the reason is the fact that the nature of the evidence concerns allegations that the respondent set up many false identities over the internet using various chat rooms and websites frequented by young people. He did this to set up and maintain communications with hundreds of teenagers, including many underage young women like Ms Ryan. In pursuit of those relationships the respondent travelled to various places and in the case of Ms Ryan attempted to set up and maintain a sexual relationship with her. Much of the evidence at the trial centred around those allegations.
Both sons of the accused were involved to some extent with the respondent’s plans to travel to Adelaide on the second occasion. When the older son refused, the younger son was persuaded to accompany the respondent to Adelaide. The respondent needed a younger person to in effect be the lure for Ms Ryan when in Adelaide.
It is the allegations involving the respondent’s sexually predatory behaviour over the internet with underage teenage girls which has attracted a great deal of publicity.
The representative for the media on this application, Ms Clark submitted that an ongoing suppression of the name of the respondent would be contrary to the public interest. She argued that the Young Offenders Act was never intended to shield an adult offender, particularly an adult offender who ought to be held publicly accountable for a crime which involved significant sexually predatory behaviour. It was submitted that publication of the image at least of the respondent, would send a very important message to the community that sexually predatory males can blend very easily into the community, and may in effect be the next door neighbour. It might also send a belated message to some of these young people who communicated with the respondent unwittingly to be much more careful in the future.
The sheer volume of internet communications of this nature referred to both at the trial and in the hearing prior to the trial is concerning. It shows it would seem that the internet is indeed a lawless highway populated by sexual predators, con men and thieves. The manner in which the respondent inveigled his way into the home of Ms Ryan by first gaining the trust, albeit temporarily of Ms Ryan’s mother was also typical of the behaviour of paedophiles grooming underage children for sex.
To that extent it would be an unfortunate result if an offender who specialised in hiding behind the anonymity of the internet was to be afforded the further protection of permanent anonymity and public accountability as a consequence of the application of a law, the primary purpose of which is to provide for the care, correction and guidance of young persons who offend against the criminal law.
This is an unusual case. Indeed I have not been able to find any other case involving the exercise of the discretion under s 63C(2) of the Young Offenders Act in relevantly similar circumstances.
In the light of these unusual circumstances it is my view that if the discretion given to the court under s 63C(2) is ever to be exercised in favour of publication of the name and image of a convicted adult then this is such case.
Any possible collateral prejudice to the junior accused at this stage arises not by virtue of his status as a former co‑accused of the respondent, but by virtue of his membership of the family of the respondent. In this respect I do not see any relevant difference in the possible effect of publication on the junior accused, as against any possible effect on the other members of the respondent’s family, to whom I have already referred. It is an inevitable consequence of being a family member of the respondent.
I am of the view that notwithstanding the possible embarrassment to the other members of the family, this is a case where the public interest requires that the name and image of the respondent be published.
In doing so it is necessary to make orders which will maintain the protection of the junior accused afforded by the provision of s 63C(1) of the Young Offenders Act.
Therefore it is important that the name of the junior accused and the details involving the historical allegations against him, in respect of which he was ultimately acquitted, are not be referred to in any report about the respondent’s offending and sentencing.
To this end I make the following orders:
1The order for suppression made on 23 February 2009 insofar as it relates to Garry Francis Newman is revoked.
2It shall be lawful to publish the name and image of the respondent in reports concerning his sentencing for his conviction of the crime of murder.
3Notwithstanding the order in paragraph two herein, it shall not be lawful to publish any reference to the name of any other member of the respondent’s family, including either son or his mother, or any address or town in which they reside or resided at the time of the murder.
4The respondent is not to be identified in any report by reference to any previous town or address in which he resided, except to the extent that it shall be lawful to publish that he is formerly from Victoria.
5There is to be no reference in any report of sentencing proceedings concerning the respondent of any of the allegations involving the junior accused.