Citation: [2000] NSWSC 1157
Court: Supreme Court of New South Wales
Date: 19 October 2000
Judge(s): Adams J
Background
The offender, Christopher Andrew Robinson, had been convicted of a serious crime. Although he was a child at the time the offence was committed, he was over the age of twenty by the time criminal proceedings were on foot before the Supreme Court.
An application was made on the offender's behalf opposing the publication or broadcasting of his name. The application arose in the context of section 11 of the Children (Criminal Proceedings) Act 1987, which ordinarily prohibits the publication or broadcast of a child's name in connection with criminal proceedings.
The offender's counsel raised concerns about difficulties the offender would face in prison if his identity became publicly known. The Crown opposed the application.
Legal Issues
- Whether section 11(1) of the Children (Criminal Proceedings) Act 1987 applied to an offender who was a child at the time of the offence but was no longer a child when criminal proceedings commenced.
- Whether, if section 11(1) did apply, the court should exercise its power under section 11(4B) to authorise publication or broadcasting of the offender's name.
- Whether the public interest in open justice outweighed the potential prejudice to the offender.
Decision
Adams J held that section 11(1) of the Act did not apply in these circumstances. In his Honour's view, the prohibition on publication does not extend to an offender who was a child at the time of the crime but is no longer a child when criminal proceedings are on foot, or at least when they commenced. No suppression order was therefore required.
Even if section 11(1) had applied, Adams J stated he would have exercised the power under section 11(4B) to authorise publication of the offender's name. His Honour identified two foundations for this conclusion. First, the denunciation of crime is a recognised function of punishment, and that denunciation is substantially incomplete if the offender remains anonymous. Second, the principle that proceedings should be conducted in public carries with it, in appropriate cases, a requirement that an offender's name be published, even where the offender was a child.
On the question of prejudice, Adams J accepted that the offender would face difficulties in custody, but found those difficulties would not be meaningfully reduced by a non-publication order because the offender's identity was in any event likely to become known. His Honour also noted that the specific difficulties raised by defence counsel arose from matters unrelated to the offence itself.
Orders Made
• Authorization to publish or broadcast the offender's name under s 11(4B) of the Children (Criminal Proceedings) Act 1987 (alternatively, finding that s 11 does not apply to the offender)
Key Takeaways
- Section 11(1) of the Children (Criminal Proceedings) Act 1987, on Adams J's interpretation, does not prohibit publication of an offender's name where the offender was a child at the time of the offence but had ceased to be a child by the time criminal proceedings commenced.
- Under section 11(4B), a court retains the power to authorise publication even where the prohibition would otherwise apply, and the interests of justice may require its exercise in serious cases.
- The denunciation function of punishment supports publication of an offender's name: anonymity renders that denunciation incomplete.
- Open justice principles extend, in appropriate cases, to authorising publication of an offender's name even when the offender was a child at the time of the crime.
- Where prison-related prejudice is inevitable regardless of a non-publication order, that prejudice carries reduced weight against the public interest in open proceedings.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), particularly sections 11(1) and 11(4B)
Cases cited: None referenced in the provided text.