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Re WD (No 2)

Re WD (No 2)

Case [2023] VSC 790 22 December 2023

Statutory Interpretation

Declaratory Relief

Administrative Law

Family Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0280

IN THE MATTER of the Bail Act 1977 (Vic)
and
IN THE MATTER of an application for bail by WD
WD	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	Elliott J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2023
DATE OF RULING:	22 December 2023
CASE MAY BE CITED AS:	Re WD (No 2)
MEDIUM NEUTRAL CITATION:	[2023] VSC 790

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OPEN COURTS – Application for proceeding suppression order – Application made by Secretary to the Department of Families, Fairness and Housing – Applicant 12-year-old girl charged with murder – Applicant subject to “care by Secretary” order – Extensive media coverage of alleged offending to date – Whether suppression order necessary to protect applicant’s safety – Utility of suppression order – Availability of treatment, care and supportive services – Protective measures – Suppression order not made – Open Courts Act 2013 (Vic), ss 4, 8, 10, 11, 13, 14, 17, 18, 19 – Children, Youth and Families Act 2005 (Vic), ss 289, 534, 598.

STATUTORY INTERPRETATION – Construction of section 8(1A) and (3) of the Open Courts Act 2013 (Vic) – Interaction with section 534 of the Children, Youth and Families Act 2005 (Vic) – Court precluded from making suppression order in respect of information the publication of which is already prohibited or restricted under separate legislative scheme.

DECLARATORY RELIEF – Application for declaration that media reporting containing certain details said to be likely to lead to the identification of a child would contravene section 534 of the Children, Youth and Families Act 2005 (Vic) – Scope of declaration not limited to existing publications – Declaration not limited to publications in Australia – Whether declaration directed towards legal controversy and not hypothetical question – Whether declaration imprecise and overly broad – Whether declaration appropriate – Declaration not made.

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APPEARANCES:	Counsel	Solicitors
For the applicant	A McGregor (solicitor)	Dowling McGregor
For the respondent	S Tamburro (solicitor)	Office of Public Prosecutions
For the Secretary to the Department of Families, Fairness and Housing	I Freckelton KC	Department of Families, Fairness and Housing
For The Herald & Weekly Times Pty Ltd, The Age Company Pty Ltd, News Life Media Pty Ltd and the Australian Broadcasting Corporation	S Mukerjea	Thomson Geer

HIS HONOUR:

A. Introduction

On 22 November 2023, an application was filed by the Secretary to the Department of Families, Fairness and Housing (“the Secretary”) for a proceeding suppression order pursuant to sections 17 and 18(1)(c) of the Open Courts Act 2013 (Vic), a closed court order pursuant to section 30(1) of the Open Courts Act, and declaratory relief.
Broadly, the Secretary’s application was made to prevent the disclosure by publication or otherwise of information that would tend to identify the applicant, a 12-year-old girl (“WD”)[1] charged with murder, as the subject of proceedings in the Children’s Court of Victoria and in this court. The application was made in the context of extensive media…

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.

Continue reading Re WD (No 2)

Details

AGLC: Re WD (No 2) [2023] VSC 790
Case: [2023] VSC 790
Decision Date: 22 December 2023

CaseChat Overview and Summary

The case of Re WD (No 2) involved the Secretary to the Department of Families, Fairness and Housing who applied for a suppression order to prevent the publication of information that could identify a 12-year-old girl, referred to as WD, who was charged with murder. The girl was subject to a "care by Secretary" order under the Children, Youth and Families Act 2005 (Vic). The Secretary sought the suppression order due to extensive media coverage of the alleged offence, which raised concerns about WD's safety. The court had to determine whether a suppression order was necessary to protect WD's safety, considering the utility of such an order, the availability of treatment, care, and supportive services, and the existing protective measures in place.

The legal issues before the court included the construction of sections 8(1A) and (3) of the Open Courts Act 2013 (Vic) and the interaction with section 534 of the Children, Youth and Families Act 2005 (Vic). Specifically, the court had to consider whether it was precluded from making a suppression order if the publication of the information was already prohibited or restricted under another legislative scheme. Additionally, the court examined the appropriateness of granting a declaration that media reporting containing certain details would contravene section 534 of the Children, Youth and Families Act 2005 (Vic). The court had to assess whether the scope of the declaration was limited to existing publications, whether it was limited to publications in Australia, whether the declaration was directed towards a legal controversy rather than a hypothetical question, and whether the declaration was precise and not overly broad.

In its decision, the court found that it was precluded from making a suppression order because the publication of the information was already restricted under the Children, Youth and Families Act 2005 (Vic). The court also determined that a declaration was not appropriate as it would be imprecise and overly broad, and it would not be directed towards a legal controversy but rather a hypothetical question. The court concluded that the existing protective measures, including the "care by Secretary" order and the provisions of the Children, Youth and Families Act 2005 (Vic), were sufficient to protect WD's safety. Consequently, the application for a suppression order and a declaration was dismissed.

Orders