R v SJK and Gas - [2011] VSC 431

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1433A of 2001

IN THE MATTER of an Application by the Director of Public Prosecutions

THE QUEEN

SJK

and

GAS

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 August 2011
DATE OF JUDGMENT:	2 September 2011
CASE MAY BE CITED AS:	R v SJK and GAS
MEDIUM NEUTRAL CITATION:	[2011] VSC 431

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CRIMINAL LAW – Suppression order – Respondents convicted of manslaughter in 2001 – Aged 15 and 16 at time of offence – Suppression order made by sentencing judge prohibiting publication of respondents’ names – Whether order should be lifted – Applicant made no submission with respect to merits of application – Submitted only that President of Children’s Court was appropriate person to determine whether publication of respondents’ names should be permitted – Application refused – Children, Youth and Families Act 2005 s 534 – Constitution Act 1975 s 87(1).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Brown	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent SJK	Mr G Thomas SC with Mr P Smallwood	Victoria Legal Aid
For the Respondent GAS	Mr L Carter	Robert Stary Lawyers

BONGIORNO JA:

On 24 July 2001, two teenage boys known as SJK and GAS pleaded guilty in this Court to the manslaughter of a 73-year-old woman in Frankston. The crime was committed on 16 October 2000 when its perpetrators were aged 15 and 16 respectively.

SJK and GAS were sentenced to terms of imprisonment,[1] which sentences were subsequently increased by the Court of Appeal.[2] A subsequent appeal by each of them to the High Court was dismissed.[3] The original sentence and the judgments of the Court of Appeal and of the High Court are all public documents, freely available on databases easily accessed through the websites of the High Court of Australia[4] and the Supreme Court of Victoria.[5] The High Court judgment is also published in the Commonwealth Law Reports.[6] Those documents fully set out the circumstances of the crime committed by SJK and GAS, their relevant antecedents, the sentences originally and subsequently imposed upon them and the reasons for those sentences. None of those documents has ever been the subject of any restriction on publication. Thus, as far as the public is concerned, SJK and GAS’s crime, their punishment, whether it was appropriate or not and every other aspect of this case may be discussed, dissected, analysed and commented upon freely and openly.
[1]R v SJK [2002] VSC 94.
[2]DPP (Vic) v SJK [2002] VSCA 131.
[3]GAS v The Queen [2004] HCA 22.
[4]See v The Queen (2004) 217 CLR 198.

The only material particulars concerning these young men and the crime they committed which are not publicly available are their names and any other information which might identify them. The publication of such material was prohibited by an order of this Court of 11 October 2001, which prohibition was continued…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] VSC 431
Decision Date: 2 September 2011

CaseChat Overview and Summary

The respondents, SJK and Gas, were convicted of manslaughter in 2001 when they were 15 and 16 years old respectively. Following their convictions, a suppression order was made by the sentencing judge prohibiting the publication of their names. Years later, an application was made to lift this suppression order. The applicant did not make any submissions regarding the merits of the application but argued that the President of the Children's Court was the appropriate person to determine whether the publication of the respondents’ names should be permitted.

The court was required to determine whether the suppression order should be lifted and, if so, who was the appropriate person to make that determination. The legal issues included the interpretation of the Children, Youth and Families Act 2005 and the Constitution Act 1975, specifically sections 534 and 87(1) respectively.

The court found that the applicant had not made any submissions regarding the merits of the application, and thus, there was no basis to lift the suppression order. The court also held that the President of the Children's Court was the appropriate person to determine whether the publication of the respondents’ names should be permitted. The court found that the applicant had not provided sufficient grounds for the lifting of the suppression order, and therefore, the application was refused. The court’s decision was based on the statutory framework and the court’s interpretation of the relevant provisions.

Orders