R v SJK and Gas
[2011] VSC 431
•2 September 2011
| 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 |
| v |
| 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 by a further order of this Court of 27 September 2006. Their full names are, however, known to anyone who attended the original sentencing hearing. They are undoubtedly known to the close relatives of the deceased.
On 30 May 2011, the Director of Public Prosecutions gave notice that he intended to apply to this Court to have the order of 11 October 2001 prohibiting the publication of a report of this proceeding that contains any particulars likely to lead to the identification of SJK and GAS lifted.
Although the application foreshadowed by that notice would appear to be designed to permit the public identification of SJK and GAS, counsel for the Director made it clear that that was not what the Director sought. He stated his position in clear terms:
The Director’s position … is that the suppression order should be lifted but not that the names of the respondents, or the identities of both respondents should be immediately published or be allowed to be published, merely that it allows or facilitates an application to be made to the President of the Children’s Court… [to permit publication of these details.]
Counsel stated that it was anticipated that if this Court lifted the current suppression order an application would be made by the deceased woman’s daughter to the President of the Children’s Court for permission to publish SJK and GAS’s names and other identifying matters.
At present, the order of this Court prohibits identification of SJK and GAS as does s 534 of the Children, Youth and Families Act 2005. That provision (which existed in corresponding earlier legislation) prohibits the publication of a report of a proceeding in the Children’s Court or of a proceeding in any other court arising out of a proceeding in the Children’s Court that contains any particulars likely to lead to the identification of, inter alia, a party to the proceeding. It has not been suggested that the order of this Court, for practical purposes, has any different effect on the question of identification than does the legislative provision referred to. Currently either or both can be said to prevent the identification of the respondents to the public at large.
Counsel for the Director also made it clear that it was not the Director’s position that there should be publication of the respondents’ identities. Rather, the Director’s position was that if an application were made to the President of the Children’s Court he would consider his position as to that application and take such steps as he considered appropriate. Counsel made it clear that the fact that the Director has made this application should not be taken as an indication that he would support any application by others to enable the identities of the respondents to be published.
Both respondents to this application challenged both the power and the standing of the Director to bring this application before the Court. Counsel for GAS submitted that, as the proceeding in relation to which the relevant suppression order was made is now completed, there is no operative statutory provision which confers the requisite power on the Director to bring an application to lift that order. He referred to Director of Public Prosecutions (ACT) v Eastman,[7] where the Full Federal Court held that the Director of Public Prosecutions of the ACT, despite having wide incidental powers in relation to the performance of his functions as Director, did not have any function with respect to a completed criminal proceeding ― that is to say, a proceeding in which all appeals have been completed. He has no general role with respect to the upholding of convictions. The Director has only those statutory functions vested in him.
[7](2002) 118 FCR 360.
The Director of Public Prosecutions Act 1990 (ACT) confers wide functions and powers on the ACT Director, including functions incidental or conducive to the performance of other functions and a power to do all things necessary or convenient to exercise his functions. The Victorian Director of Public Prosecutions has the function, among others, of instituting proceedings in the Supreme Court in respect of any indictable offence.[8] The words ‘in respect of’ are of very wide reach and may well be sufficient to empower the Director to bring and prosecute this application in this Court. However, having regard to the conclusion I have reached, there is no need to consider further the power of the Director to bring the application nor his standing to do so. For present purposes, they can both be assumed.
[8]Public Prosecutions Act 1994 s 22(1)(a).
The application
The submission of the Director on this application can be summarised as being that the relevant suppression order no longer serves any useful purpose since the respondents have completed the sentences imposed on them and that, in any event, whether there should be public identification of the respondents or not is a matter which should be entrusted to the President of the Children’s Court, without whose consent such identification would remain illegal. In effect, this submission amounts to an argument that this Court should now decline to exercise the jurisdiction which it has to maintain the suppression order in favour of a more appropriate forum; namely, the President of the Children’s Court exercising the powers vested in him by the Children,Youth and Families Act 2005. Although not referred to by the Director, s 87(1) of the Constitution Act 1975 specifically permits this Court to decline jurisdiction in favour of a body having jurisdiction conferred by other legislation. He submits that this is what this Court should do.
The Children’s Court has a general criminal jurisdiction with respect to children involved in the criminal justice system but that jurisdiction does not extend to a case where a child is charged with a homicide offence, including manslaughter. It cannot try a child for such an offence and, it follows, it cannot punish a child for such an offence. The trial and punishment of children for such offences is confined to the County Court and this Court or, in the case of murder, to this Court alone.
In the present case, the manslaughter presentment to which SJK and GAS both pleaded guilty was made in this Court and they were sentenced by this Court. The order preventing publication of their identities was made by this Court and subsequently confirmed by this Court. This Court is fully seized of this matter and should remain so, particularly having regard to the fact that SJK and GAS are now adults, even if young adults, and, so, are beyond the jurisdiction of the Children’s Court. Accordingly, it is not appropriate that, at this late stage, this Court decline to continue to exercise jurisdiction in this matter.
Although by its terms the Director’s application sought that the suppression order be lifted, counsel specifically eschewed any argument as to the merits of the application. Thus, he did not develop any argument as to why the suppression order did not now serve any useful purpose. He confined himself to what might be termed a forum argument ― that the President of the Children’s Court was a more appropriate person to decide whether there should or should not be publication of these men’s names and other identifying matters. Accordingly, no argument was directed to the issues which an examination of the merits of the application would require, nor was there any evidentiary material relevant to the merits apart from some affidavits filed on behalf of the respondents.
In these circumstances, it is inappropriate to consider issues going to the continued utility of the order or the merits of continuing or lifting the order. It is sufficient to say that a consideration of the utility of it or the merits of lifting it could only proceed properly on adequate evidentiary material which addressed the interests of justice, including the reasons why the suppression order should or should not be lifted, the legal and other consequences of taking either course for those persons legitimately interested in having the order lifted or maintained and the public interest. Until an appropriate application is before the Court on proper material, the suppression order should remain. Accordingly, the Director’s application will be dismissed.
Costs
Counsel for both respondents to this application sought costs in the event that their opposition to the Director’s case was successful. They relied upon R v Garth.[9]
[9](2008) 21 VR 203 (‘Garth’).
In Garth, Nettle JA, speaking for the Court (Maxwell P, Nettle and Weinberg JJA), confirmed the availability of costs orders in proceedings for prerogative relief even where the Crown is the unsuccessful party. His Honour considered that s 24(1) of the Supreme Court Act 1986 was wide enough to enable an order for costs to be made against the Crown in such a case. But this application is not a proceeding for prerogative relief. It is more akin to an interlocutory application, even though, the proceeding to which it is interlocutory, namely the trial and sentencing of SJK and GAS on an indictable offence is, of course, completed.
In Perkins v County Court of Victoria,[10] Phillips JA (with whom Charles and Buchanan JJA agreed) expressed the opinion that the rule as to the Crown neither paying nor receiving costs does not apply to judicial review proceedings (that is to say, proceedings for relief in the nature of prerogative relief) although it ‘operates regularly upon the trial of indictable offences and probably in interlocutory proceedings relating to such trials…’.[11] The application before the Court being in the nature of an interlocutory application in relation to a trial on indictment, I am satisfied that the general rule with respect to costs in criminal proceedings should apply; that is to say, that the Crown should neither receive nor pay costs. There will be no order as to costs.
[10](2000) 2 VR 246.
[11]Ibid 266.
Orders
The order of the Court is that:
1. The application by the Director of Public Prosecutions for Victoria to discharge the suppression order concerning SJK and GAS made by this Court on 11 October 2001 and confirmed by this Court on 27 September 2006 is refused.
2. There be no order as to costs.
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