R v SJK and GAS
[2006] VSC 335
•27 September 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1433 of 2001
IN THE MATTER of an Application by the Herald and Weekly Times Pty Ltd (ACN 004 113 937)
| THE QUEEN | |
| v | |
| SJK and GAS | |
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JUDGE: | GILLARD J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 September 2006 | |
DATE OF JUDGMENT: | 27 September 2006 | |
CASE MAY BE CITED AS: | R v SJK and GAS | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 335 | |
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SUPPRESSION ORDER made by Supreme Court in pending criminal proceeding – Accused children within meaning of Children and Young Persons Act 1989 – Accused sentenced to lengthy terms of imprisonment for manslaughter - Section 26 of Act prohibits publication – Whether Supreme Court should continue order after criminal proceeding completed – Supreme Court jurisdiction not ousted - Supreme Court order covering same field as s.26 - Prisoners about to complete minimum term and become eligible for parole – Sentence still operative.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP (Vic) | Mr J. Rapke QC | Office of Public Prosecutions Victoria |
| For the First Defendant | Mr G. Thomas SC with Mr G. Hughan | Victoria Legal Aid |
| For the Second Defendant | Mr L. Carter | Dowling McGregor Thomas |
| For the Herald and Weekly Times Pty Ltd | Mr J.H. Quill | Corrs Chambers Westgarth |
TABLE OF CONTENTS
Parties................................................................................................................................................... 2
Criminal proceeding.......................................................................................................................... 3
Suppression Orders........................................................................................................................... 4
Present application............................................................................................................................ 5
Previous application by the Herald................................................................................................ 7
Section 26 of the Children and Young Persons Act 1989.............................................................. 7
The Order of Bongiorno J................................................................................................................. 8
Should the Order be discharged?................................................................................................. 10
A. Section 26 of the Children’s Act............................................................................................ 10
B. Supreme Court’s jurisdiction............................................................................................... 11
C. Should this Court exercise its jurisdiction?....................................................................... 12
Should the order be discharged?.................................................................................................. 15
Conclusion......................................................................................................................................... 15
HIS HONOUR:
In this proceeding instituted by summons, the Herald and Weekly Times Pty Ltd (“The Herald”) seeks an order that an order made by Bongiorno J on 11 October 2001, prohibiting the publication of a report of a criminal proceeding containing any particulars likely to lead to the identification of two prisoners, be vacated.
Parties
The Herald is the proprietor and publisher of a daily newspaper circulating in this State, and having a very large and wide readership. It brings the application in the public interest.
Notice was given to the Crown, and Mr Jeremy Rapke QC sought permission to appear on the application, and leave was granted for him to do so, on behalf of the Victorian Director of Public Prosecutions.
The two prisoners sentenced by Bongiorno J on 3 April 2002 were given notice of the application, and counsel appeared on their behalf. The two men had been known throughout the criminal proceedings as “SJK” and “GAS”.
SJK was born on 1 September 1985 and is now aged 21 years. GAS was born on 15August 1984 and is now aged 22 years. Each prisoner pleaded guilty to manslaughter and was sentenced to a period of imprisonment. Each served his imprisonment at the Juvenile Justice Centre at Parkville, and each was transferred to an adult prison when he attained the age of 21 years. At the date of the commission of the offence, on 15 October 2000, and of their arrest, each of them was a child within the meaning of the Children and Young Persons Act 1989 (“Children’s Act”). At that time, a child was defined by the Children’s Act as a person who was under the age of 17 years. By reason of s.244, a person who was no longer a child within the meaning of the Children’s Act could be transferred to a youth training centre, instead of serving a sentence in an adult gaol.
Criminal proceeding
On 23 July 2001, a presentment was filed in this Court against SJK and GAS, alleging that at Seaford in this State, on or about 15 October 2000, they murdered Marie Zidan. At the time of the killing, SJK was aged 15 years 1.5 months, and GAS was aged 16 years two months.
The charges against the youths were laid in the Children’s Court of Victoria. A committal took place and they were committed for trial in this Court. The filing of the presentment in this Court initiated the criminal proceeding in this Court. After the presentment was filed, discussions took place between counsel for the prosecution and the accused, and as a result, on 24 July 2001, the Court was informed that an application would be made to file a new presentment alleging manslaughter. On that day, both accused pleaded guilty to the count of manslaughter. The proceeding was then adjourned for a plea later that year. There was discussion in Court concerning the application of s.26 of the Children’s Act with respect to publication, but nothing was resolved at that time. I interpolate to observe that Vincent J, at an earlier directions hearing on 5 June 2001, had made an order prohibiting the publication of any information by which either accused could be directly or indirectly identified.
The plea commenced on 11 October 2001 and continued on 25 February and 8 March 2002. On 3 April 2002, Bongiorno J sentenced each of the youths to a term of imprisonment of six years, and fixed four years to be served before each became eligible for parole. See R v SJK and GAS.[1]
[1][2002] VSC 94.
Most killings are serious crimes, and this killing was no exception. The deceased was an elderly woman, aged 73, who resided in Seaford. She was a frail invalid pensioner, suffering from diabetes and osteoarthritis, and her mobility was restricted. She resided with her 47 year old son, who was intellectually disabled, and both she and her son relied upon outside carers to look after them. She was found dead on 16 October 2000. The autopsy revealed that she died as a result of asphyxia caused by manual neck compression or choking, and had multiple areas of blunt trauma to her chest, back and pubic region. The evidence revealed that she may have been smothered. She also suffered three fractured ribs. The evidence led to the conclusion that before she died, she had been subjected to considerable violence and had been sexually assaulted.
On any view, it was an extremely serious case of manslaughter, with many aggravating factors, including home invasion, robbery, and a brutal physical and sexual assault on an elderly and vulnerable victim. The full circumstances of the appalling brutality can be seen in the sentencing reasons of Bongiorno J.
The Crown appealed the sentences on the ground that they were manifestly inadequate, and the Court of Appeal increased the sentences to nine years with a non‑parole period of six years. See DPP v SKJ and GAS.[2] The prisoners were granted leave to appeal by the High Court and the High Court dismissed the appeal. See GAS v The Queen.[3]
[2][2002] VSCA 131.
[3][2004] 17 CLR 198.
The minimum period of six years fixed by the Court of Appeal is about to expire, and it is anticipated that each of the prisoners will seek parole in October 2006.
Suppression Orders
The order made by Vincent J on 5 June 2001 was not expressed to be until further order, but I am satisfied that it was implied that it would be until further order. It is clear that Bongiorno J, when he made a later order, proceeded on that basis.
On 11 October 2001, application was made on behalf of the prisoners for an order that their identities not be disclosed, and for a suppression order prohibiting publication of their identities. His Honour heard submissions from the Crown and counsel for the two prisoners. In a judgment delivered that day, he held that an order should be made. His attention was drawn to s.26 of the Children’s Act, which contains a prohibition on the publication of a photograph or any particulars likely to lead to the identification of a child to any proceeding in the Children’s Court or in any other court arising out of the proceeding in that court. His Honour considered a number of authorities. Despite the provisions of s.26, he decided to make an order pursuant to the inherent jurisdiction of this Court and ss.18 and 19 of the Supreme Court Act 1986.
His Honour made the following order:
“That any report of a proceeding in this Court that contains any particulars likely to lead to the identification of SJK and GAS is prohibited until further order.”
Present application
Solicitors acting on behalf of the Herald filed a summons in this Court on 7 September 2006 seeking an order that the order made by Bongiorno J on 11 October 2001 be vacated.
Counsel appearing on behalf of SJK and GAS opposed the application.
Mr Rapke QC informed the Court that the DPP did not wish to be heard on the merits of the application, but wished to draw to the Court’s attention what occurred in the High Court proceeding in respect to the identity of the prisoners, and, secondly, to emphasise that s.26 of the Children’s Act operated and that the Children’s Court was established as a specialist court dealing with matters concerning children and young persons.[4]
[4]See s.1 of the Act.
In support of the Herald’s application was an affidavit of a legal practitioner, Justin Healy Quill. He referred to a number of exhibits. In addition, a daughter of the deceased, Mrs Greening, swore an affidavit in which she deposed to the appalling effect that the death of her mother has had on her. She also expressed concern in relation to the release of the prisoners. There was no other evidence placed before the Court.
At the outset of the application, a submission was made on behalf of SJK and GAS that the application should be heard by Bongiorno J. Bongiorno J is presently on leave and will not be returning to his judicial duties until 9 October 2006. He is to hear a number of trials which have been fixed for 10 October and the following days. As a general rule, it is appropriate that where an order subject to further order is made by a judge, that judge, if possible, hear any further application. The reason for this general rule is because the judge who made the order was seized with the matter, and has a good knowledge and understanding of the circumstances. Such knowledge and understanding would, no doubt, be of assistance in determining an application to discharge the order. However, it is only a general rule. An approach was made to Bongiorno J prior to him going on leave in August 2006, and his Honour indicated that he was not in a position to hear the matter. It is fairly clear from his Honour’s Court commitments on his return that he would not be able to hear the matter for some time.
It was emphasised by Mr Carter of counsel, who appeared on behalf of GAS, that an attack was made upon the validity of Bongiorno J’s order and, accordingly, that it would be appropriate for his Honour to hear such an application. As I stated in the course of submissions, this is not an appeal from his Honour’s order, and whether or not his Honour should have made the order on 11 October 2001 is not a matter that I would address. There is, to some extent, a degree of urgency, in that it is understood that the eligibility for parole of each prisoner will fall to be considered in the month of October. Further, a passage of some four years has passed since his Honour published his sentencing remarks, and one may conclude that the passage of time may have had some effect upon his Honour’s memory of the circumstances. Mr Carter submitted that there was no question of urgency, and that one would not expect that the effluxion of some years would affect his Honour’s memory of the circumstances. I note those arguments. I think there may be a time factor in this, in that it would be unlikely that his Honour could entertain an application to vacate his order prior to the end of October. I decided that in all the circumstances, it was appropriate that I should hear the matter and, accordingly, I did so. I do not think for one moment that any of the interested parties would be prejudiced or disadvantaged by me hearing the matter. Indeed, it was not suggested by any party that there was any prejudice or disadvantage.
Previous application by the Herald
Prior to the application being made to this Court, the Herald made an application to the Children’s Court. On 15 August 2006, it made an application to the President of the Children’s Court of Victoria for an order permitting a report of the proceeding which would lead to the identification of SJK and GAS, pursuant to s.26 of the Children’s Act. The Herald sought permission to identify each of the prisoners by name and to publish a picture of each of the prisoners. During the course of the application, counsel for SJK produced a copy of the ruling and order made by Bongiorno J on 11 October 2001. President Grant dismissed the application and made a number of observations, one of which was that he would not consider the application because of the suppression order made by Bongiorno J; hence, the present application.
Section 26 of the Children and Young Persons Act 1989
It is only necessary to reproduce s.26(1) which relevantly provides:
“(1)A person must not publish or cause to be published –
(a)except with the permission of the President, a report of a proceeding in the Court or other proceeding in any other court arising out of a proceeding in the Court that contains any particulars likely to lead to the identification of –
(i)the particular venue of the Children’s Court, other than the Koori Court (Criminal Division) in which the proceeding was heard; or
(ii)the child or other party to the proceeding; or
(iii)a witness in the proceeding; or
(b)except with the permission of the President, a picture as being or including a picture of a child or other party to, or a witness in, a proceeding referred to in paragraph (a); or
(c)except with the permission of the Secretary granted in special circumstances … “.
There is a penalty provision where a person publishes or causes to be published any of the prohibited matters without the permission of the President. In the case of a body corporate, the penalty is 500 penalty units and in any other case, it is 100 penalty units or imprisonment for two years.
The Order of Bongiorno J
Bongiorno J’s order is an order of this Court, and has not been appealed. It would have been open to appeal the order. See s.17(A3) of the Supreme Court Act 1986 and The Herald and Weekly Times v A.[5] It is an order of this Court and must be obeyed until it is set aside. The order will continue until set aside. The onus is on the Herald to show that the order should be discharged.
[5](2006) 160 A Crim R 299.
The application for a suppression order was made to Bongiorno J on 11 October 2001 and his Honour delivered reasons later that day. His reasoning can be briefly summarised:
· His Honour referred to s.26 of the Children’s Act and noted that Cummins J in DPP v R and T, delivered on 15 August 1995, refused to make a suppression order in this Court on the basis that s.26 covered the situation;
· His Honour had some doubts about the correctness of the ruling of Cummins J. It is uncertain as to what the doubt was, whether it went to the jurisdiction of this Court, or to whether in the circumstances what Cummins J did was correct;
· His Honour was referred to the Court of Appeal decision of Herald and Weekly Times Ltd v Mr G. Levine, an unreported decision delivered 25 March 1996. Bongiorno J doubted whether that decision supported what Cummins J had decided, but his Honour stated that it was unnecessary for him to consider whether s.26 applied to the proceeding in this Court;
· His Honour noted that the jurisdiction of the Court to suppress publication was partly statutory and partly inherent. He referred to ss.18 and 19 of the Supreme Court Act 1986 and the decision of Brooking J in Re a former officer of the Australian Security Intelligence Organisation[6];
· His Honour considered there may be some doubt about the application of the legislation but provisionally opined that the matter may be covered by s.19(b) of the Act. However, he held that the Court had an inherent jurisdiction to make a suppression order;
· His Honour then performed the balancing exercise between the public interest in open justice and the rights of the two accused, being minors, and held that the balance of interest was in favour of making the suppression order.
[6][1987] VR 875
It was submitted by the Herald that Bongiorno J’s doubts about the correctness of Cummins J’s construction of s.26 of the Children’s Act were unfounded, that the section did apply to the proceeding in this Court, and that, accordingly, his Honour’s ruling should be discharged.
In my opinion, it is not open to argue on the present application that Bongiorno J’s order was made without jurisdiction, or should not have been made in the circumstances. This Court is not sitting on an appeal against the order made by Bongiorno J. It is a continuing order. It was not appealed. The question is whether the order should continue as at today. The Court is concerned with present circumstances. Of course, if the Court came to the decision that it did not have jurisdiction to make the order in the present circumstances, then the order would be vacated. But, having said that, in my opinion, this Court does have jurisdiction to make the order that Bongiorno J made. The jurisdiction is found both in the Supreme Court Act and its inherent jurisdiction. Whilst it is noted that Bongiorno J had some doubts about the application of the statutory jurisdiction, in my opinion, the statutory jurisdiction was invoked.
By reason of s.19(b), the Court may make an order if, in its opinion, it is necessary to do so, in order not to –
“(b) prejudice the administration of justice.”
The Court was dealing with a criminal proceeding. The Court’s jurisdiction had been invoked. Relevant to the sentencing process was the question of rehabilitation. The naming of minors in a criminal proceeding may affect their rehabilitation and, further, their naming or anonymity are matters relevant to the sentencing process. Bongiornio J was seized with the matter, it was appropriate for the Supreme Court to control the question of publication, and, in my opinion, s.19(b) in the circumstances was invoked. The jurisdiction of the Court, both statutory and inherent, had not been excluded by any statutory provision. Speaking for myself, I would have made the same order as Bongiorno J did on 11 October 2001. However, we are now dealing with an application in September 2006. Each prisoner is now an adult. In my opinion, the question is whether, in the circumstances that now prevail, the Herald has shown that the order is no longer appropriate and necessary and should be discharged.
Should the Order be discharged?
In considering and deciding whether or not the order should be discharged, in my opinion, the Court must consider and determine the following questions:
(i)Does s.26 of the Children’s Act apply to the criminal proceeding which has been heard and finalised in this Court?
(ii)If yes to question (i), do ss.18 and 19 of the Supreme Court Act 1986 apply to the criminal proceeding in this Court? In answering that question, the Court must consider and determine whether s.26 of the Children’s Act covered the field and excluded the jurisdiction of this Court.
(iii)If both this Court and the Children’s Court have jurisdiction, should this Court continue to exercise its jurisdiction, especially as the Children’s Court is a specialist court and, secondly, any order made by this Court would have the same effect as s.26 of the Act?
(iv)If this Court should exercise its jurisdiction, should the order of Bongiorno J continue or be discharged?
A. Section 26 of the Children’s Act
In my opinion, s.26(1) applies to the proceeding in this Court. The criminal proceeding commenced in the Children’s Court by the laying of the charges against the two prisoners, and the committal proceeding which followed. At that committal proceeding, both youths were committed for trial in this Court. The filing of the presentment in this Court initiated the criminal proceeding in this Court, but in my view, it clearly arose out of the proceeding which had commenced in the Children’s Court. The presentment was filed in this Court as a result of the orders made by the Children’s Court committing the two youths for trial.
Cummins J, in DPP v R and T, supra, stated that the application of s.26 was a matter of statutory construction, and he concluded:
“that the provisions of s.26 of the Children and Young Person’s Act 1989 applied to this proceeding for manslaughter in this Court and, as a consequence, that the person to make the decision about restriction on publication is the Senior Magistrate of the Children’s Court.”
I agree with his Honour’s reasoning. However, if his Honour was expressing the view that that excluded the jurisdiction of this Court, I would respectfully disagree with him. I am not sure that he said that. It would be relevant to the exercise of the jurisdiction of this Court to refuse to make an order because Parliament has addressed the question and prescribed the prohibition in legislation. His Honour did say that he would publish further reasons, however, it appears that he did not do so.
B. Supreme Court’s jurisdiction
This Court is a superior court of record with unlimited jurisdiction, and is the only “common law” court in this State. It clearly has jurisdiction to make a suppression order. The jurisdiction is found in ss.18 and 19 of the Supreme Court Act 1986 and the inherent jurisdiction of the Court. Unless that jurisdiction has been excluded by Parliament, then this Court is entitled to exercise it in the appropriate circumstances.
As a general proposition, where a superior court has jurisdiction, it is entitled to exercise that jurisdiction unless Parliament has unequivocally excluded its application. There is nothing in the Children’s Act which excludes the application of this Court’s jurisdiction in a proceeding before it, and each of the parties during the course of submissions accepted that that was so. Section 279A of the Children’s Act limits the jurisdiction of this Court, and that is made clear by sub‑s.(1) of that section. However, the particular jurisdiction which is altered or varied is specifically enumerated, and there is nothing in the section which excludes the jurisdiction of this Court to make a suppression order in a proceeding before it.
It follows that, in my opinion, there are concurrent jurisdictions dealing with the question, and whether or not this Court should exercise its discretion will depend upon the particular circumstances at the relevant time.
C. Should this Court exercise its jurisdiction?
When Bongiorno J made the suppression order on 11 October 2001, there was a criminal proceeding in this Court which had not been finalised. Indeed, his Honour evidently made the order on the first day of the plea, which was subsequently heard on three further days in the following five months. His Honour was seized with the matter and, as I have indicated, in my opinion was justified in making the order he did in the circumstances. His Honour referred to the Children’s Act and the prohibition on naming children in criminal proceedings. If one traces the Acts of Parliament going back well in excess of 100 years, that has always been the rule in relation to minors. His Honour stated:
“So far as the principle that criminal justice should be administered openly, it is clear from the legislation to which I have referred that that principle must give way in certain circumstances to the necessity to place the interests of the person accused, or indeed convicted, ahead of the community’s right to know who that person is. That this is itself in the public interest in appropriate circumstances is clear.”[7]
[7]See p.54 of transcript.
The principle protecting a young person from being identified in a criminal proceeding is well established, and applies throughout the common law world. The principle was eloquently summarised in a case referred to by Mr Carter, Smith v Daily May Publishing Company,[8] which was a decision of the Supreme Court of the United States. In that case, Mr Justice Rehnquist, while noting that freedom of speech was important, went on to observe:[9]
“While we have shown a special solicitude for freedom of speech and of the press, we have eschewed absolutes in favour of a more delicate calculus that carefully weighs the conflicting interests to determine which demands the greater protection under the particular circumstances presented.”
[8](1979) 443 US 97.
[9]At p.443 US at 106.
Justice Rehnquist further observed:
“It is a hallmark of our juvenile justice system in the United States that virtually from its inception at the end of the last century its proceedings have been conducted outside of the public’s full gaze and the youths brought before our juvenile courts have been shielded from publicity.”[10]
[10]At 107.
His Honour then went on to observe the importance of rehabilitation, and stated:
“Publication of the names of juvenile offenders may seriously impair the rehabilitative goals of the juvenile justice system and handicap the youths’ prospects for adjustment in society and acceptance by the public.”[11]
[11]At 107 and 108.
His Honour then summarised the effect of the balancing of the public interest and the interests of the youthful offender, by observing:[12]
“By contrast, a prohibition against publication of the names of youthful offenders represents only a minimal interference with freedom of the press.”
[12]At p.108.
In my respectful opinion, his Honour’s observations apply with equal force in this State.
It was with those principles in mind that Bongiorno J made the order. He sentenced the youths with the knowledge that the order was in place, and no doubt it played its part on the question of rehabilitation.
Whilst it is accepted that this Court’s function has ceased, in that the sentencing exercise has been completed and the prisoners are serving their sentence, the effect of the orders made in this Court has not ceased. Each of the prisoners has a period of imprisonment still to serve.
Mr Quill, on behalf of the Herald, submitted that the Court should discharge the order because it achieves nothing, bearing in mind the provisions of s.26 of the Children’s Act. He submitted – and, in my view, correctly – that if the order was discharged, that would not entitle his client, or indeed any other media outlet, to publish the names of the prisoners or publish a photograph of them, because s.26 applied. He conceded that s.26 did apply, and informed the Court that if the order was discharged, the Herald would have to make an application to the President of the Children’s Court for permission under s.26 to identify the prisoners and publish a photograph of them.
Given that s.26 would still apply if the order was discharged, the question then is, should this Court continue an order which covers the same field as a section of an Act of Parliament? As a general proposition, this Court does not make an order in the exercise of its discretion which is futile and which can have no practical effect. See Marriner v Smorgan.[13]
[13][1989] VR 485 and on appeal (1989) 167 CLR 368.
Mr Quill, on behalf of the Herald, submitted that the appropriate forum to decide the question of whether or not publication should be permitted was the Children’s Court, pursuant to the statutory jurisdiction given to it by s.26 of the Children’s Act. His submission was supported to some extent by the submissions made by Mr Rapke QC, who emphasised that the Children’s Court was established as a specialist court dealing with these matters, and has a statutory jurisdiction to deal with the issues.
If the criminal proceeding in this Court had run its course, and the sentencing orders made had ceased to have any effect, Mr Quill’s submission would have substance. However, that is not the position. I accept that the circumstances have changed, but not to the extent that this Court’s jurisdiction has run its course. Each of the prisoners was sentenced to a period of nine years, and neither has completed his sentence. Each has served nearly six years, but there are still three more years before the sentences have been served. In those circumstances, the orders made in this Court in sentencing each prisoner have not finally been carried out. In my opinion, it is a matter for each individual judge in this Court, when confronted with an application for a suppression order concerning a child in a criminal proceeding, to consider whether to exercise the Court’s jurisdiction, and whether it is in the interests of the child, and, in particular, the sentencing process, that a suppression order should be made. Bongiorno J was of the view that a suppression order should be made, and there is no doubt that the fact of the suppression order was a relevant matter in the sentencing exercise, and, in particular, the question of rehabilitation. His Honour thought it appropriate that a suppression order ought to be made. When the Court of Appeal increased the sentence, rehabilitation was a factor relevant to the sentencing exercise. Given those circumstances, it is my opinion that this Court should continue to have control over the question of publication of the names of the prisoners. If the order is vacated, the control is removed. Of course, when each sentence has been completed, a different view may be taken, but whilst the order is still operating, it is, in my opinion, inappropriate to remove the control of this Court over the question of the publication of the identity of each prisoner.
Should the order be discharged?
In my opinion, the order should not be discharged. It is still effective. It was a matter relevant to the sentencing process. Different considerations may apply once the sentences are served, and that is a matter for a future date.
Conclusion
For the reasons stated, the order made by Bongiorno J will not be discharged. Subject to any submissions by counsel, I propose to order that the application by the Herald & Weekly Times Pty Ltd, filed 7 September 2006, be dismissed.
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