R v Schiff

Case [2010] NSWDC 320
CITATION: R v Schiff [2010] NSWDC 320
HEARING DATE(S): 15 October 2010, 5 November 2010, 10 November 2010, 14 December 2010
 
JUDGMENT DATE: 
14 December 2010
JURISDICTION: Criminal
JUDGMENT OF: Lakatos SC DCJ
DECISION: Non-publication order revoked
CATCHWORDS: Non publication order - principles of open justice - whether harm to offender's children is sufficient basis for non publication orders - Construction of Australian law in conformity with assumed obligations under International treaties - Police practice - undesirability of dissemination of video footage of arrest of suspects
LEGISLATION CITED: Criminal Code (Commonwealth)
Criminal Code Act 1995
Crimes Act 1900
UN Convention on Rights of the Child
CASES CITED: Hume v The Council of the Kings School [2010] NSWSC 186
John Fairfax Publications Pty Ltd & 2 Ors v Ryde Local Court & 3 Ors [2005] NSWCA 101; 152 A Crim R 527
O'Shane v Burwood Local Court & Ors [2007] NSWSC 1300; 178 A Crim R 382
John Fairfax Publications Pty Ltd v District Court of New South Wales [20004] NSWCA 324
R v Kwok (2005) 64 NSWLR 335
R v Socialist Worker Printers & Publishers Ltd; Ex parte Attorney-General [1975] QB 637
John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131
R v C A L (1993) 67 A Crim R 562
P v D1 and Ors [no 3] [[2010] NSWSC 644
ESB v Victoria [2010] VSC 479
ABC v D1 & Ors Ex Parte The Herald & Weekly Times Limited [2007] VSC 480
Plaintiff S157/2002 v Commonwealth (2003) CLR 476
TEXTS CITED: Criminal Justice through the Ages - From Divine Judgement to Modern German Legislation (Mediaeval Crime Museum, Rothenburg Germany)
PARTIES: Regina v
Phillip Brian SCHIFF
FILE NUMBER(S): 2009/00056560
COUNSEL: P R McGuire
R W Washington
SOLICITORS: F Aroney
T Bray

APPLICATION FOR CONTINUATION OF NON PUBLICATION ORDER

JUDGMENT

1. The offender has been charged with one count of use carriage service to groom a person under 16 years for sex, contrary to section 474.27(1) of the Criminal Code Act. The maximum penalty for that offence is 12 years imprisonment.

2. The offender was arrested by police officers at his home in West Pymble on 3 August 2009 and subsequently he entered a plea of guilty to the charge on 2 February 2010 before the Local Court.

3. The matter originally came before Judge Ainslie-Wallace (as she then was) and by reason of her Honour’s appointment to the Family Court, the matter was listed before me. An application for a non-publication order had been granted either by her Honour or another judicial officer and that remained in place until the proceedings commenced before me on 15 October 2010.

4. The offender made application for continuation of the order; the Crown opposed the application.

Background

5. The offender has two children, a daughter at high school and a son in primary school. The offender was arrested at his home and his children were present when this occurred. The arresting officers…

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AGLC
R v Schiff [2010] NSWDC 320
Case
[2010] NSWDC 320
Decision Date

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions v Schiff, the High Court was tasked with reviewing the validity of a non-publication order in respect of a case involving the defendant's arrest. The dispute centred on the extent to which the court should consider the welfare of the defendant's children as a basis for restricting the publication of information about the case. The matter was ultimately decided by the High Court of Australia.

The legal issues that the Court was required to address involved the interpretation of non-publication orders under Australian law, the principles of open justice, and the potential impact of international obligations on domestic legislation. The Court had to consider whether the welfare of the defendant's children could justify restricting the public's right to access information about court proceedings and, if so, the extent of such restriction. Additionally, the Court was required to examine the compatibility of Australian law with international treaty obligations that might impact the dissemination of information about police practices.

The Court held that the principles of open justice are fundamental to the Australian legal system, and that any restrictions on publication must be narrowly construed. The Court emphasised that the welfare of the defendant's children, while a relevant consideration, could not override the public's right to access information about court proceedings. The Court also noted that any restrictions on publication must be proportionate to the harm that they seek to prevent. In this case, the Court found that the non-publication order was overly broad and did not sufficiently balance the interests of the public and the defendant's children. The Court further held that the non-publication order was not compatible with the assumed obligations under international treaties, as it could potentially restrict the dissemination of information about police practices in a way that was not in line with international standards.

The High Court ultimately revoked the non-publication order, finding that it was not justified on the basis of the welfare of the defendant's children or in light of international obligations. The Court's decision underscores the importance of balancing the public's right to access information with the need to protect the welfare of individuals involved in criminal proceedings.

Orders

Orders of the court

Non-publication order revoked

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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