R v SJK and GAS - [2006] VSC 335

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…

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: [2006] VSC 335
Decision Date: 27 September 2006

CaseChat Overview and Summary

The case involved two accused, SJK and GAS, who were facing criminal charges. They were children within the meaning of the Children and Young Persons Act 1989 and were sentenced to lengthy terms of imprisonment for manslaughter. The Supreme Court had made a suppression order prohibiting publication of information related to the case. The issue before the court was whether the Supreme Court should continue the order after the completion of the criminal proceedings. The court had to consider whether its jurisdiction was ousted and whether the Supreme Court order covered the same field as section 26 of the Act.

The court held that its jurisdiction was not ousted and that the Supreme Court order covered the same field as section 26 of the Act. The court noted that the prisoners were about to complete their minimum term and become eligible for parole, and their sentence was still operative. The court concluded that the suppression order should continue, as the interests of justice required it. The court also noted that the suppression order was necessary to protect the privacy and welfare of the children and to prevent the publication of information that could be harmful to them.

The court held that the suppression order should continue after the completion of the criminal proceedings. The court noted that the children were about to complete their minimum term and become eligible for parole, and their sentence was still operative. The court concluded that the suppression order was necessary to protect the privacy and welfare of the children and to prevent the publication of information that could be harmful to them. The court also noted that the suppression order was consistent with the objectives of the Children and Young Persons Act 1989.

The final orders of the court were that the suppression order made by the Supreme Court in the pending criminal proceeding should continue after the completion of the criminal proceedings. The court noted that the children were about to complete their minimum term and become eligible for parole, and their sentence was still operative. The court held that the suppression order was necessary to protect the privacy and welfare of the children and to prevent the publication of information that could be harmful to them. The court also noted that the suppression order was consistent with the objectives of the Children and Young Persons Act 1989.

Orders