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Court of Criminal Appeal 1 December 2006

Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK

[2006] NSWCCA 386

Sexual offencesPublic order & justice offences
CRIMINAL LAW PRACTICE AND PROCEDURE PUBLICATION ORDERS CRIMINAL LAW PRACTICE AND PROCEDURE PUBLICATION ORDERS

Citation: Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386
Court: Court of Criminal Appeal, New South Wales
Date: 1 December 2006
Judge(s): Spigelman CJ; Basten JA; Hislop J

Background

Four brothers were convicted between 2004 and 2005 of multiple counts of aggravated sexual assault and related offences arising from conduct in July 2002. At the time of the primary offences, two brothers were adults, one was 17 years and eight months old, and one was 16 years old. Because two of the brothers were children at the time of the offences, the prohibition in s 11(1) of the Children (Criminal Proceedings) Act 1987 applied to all four, shielding their identities from publication.

A media organisation applied to the Court of Criminal Appeal for orders that would allow it to publish the brothers' names in connection with their convictions. The application sought three forms of relief: an order under s 11(4B) authorising publication of the names of the two younger brothers; variation of a pseudonym order made by Sully J; and variation of a non-publication order made by Hidden J.

The Court separately determined preliminary issues concerning its standing and competency to hear the application before addressing the merits.

  • Whether the Court of Criminal Appeal had jurisdiction to make an order under s 11(4B) of the Children (Criminal Proceedings) Act 1987, given that such orders can only be made by "a court that sentences a person on conviction" and only "at the time of sentencing"
  • Whether courts ought to make pseudonym orders or non-publication orders that duplicate the effect of the statutory prohibition in s 11(1)
  • Whether non-publication and pseudonym orders made for purposes separate from s 11 could stand alongside the statutory scheme
  • Whether costs should be awarded against the media applicant on the basis of an abuse of process

Decision

The Court dismissed the application. The central jurisdictional issue was that s 11(4B) confines the power to authorise publication to the court conducting the sentencing, and only at the time sentencing occurs. The Court of Criminal Appeal, hearing an application by a media organisation after sentencing had concluded, had no power to make such an order. The applicant's failure to identify this jurisdictional limitation in its original submissions was noted, but the Court declined to treat that failure as an abuse of process.

On the pseudonym orders, the Court found that s 11(1) is self-executing. It carries its own penalty, its own exclusions, and its own mechanism for applying those exclusions. Courts should not, in the ordinary course, make separate orders whose sole purpose is to replicate the statutory prohibition, because doing so creates a parallel contempt exposure without legislative basis.

However, the Court recognised that non-publication and pseudonym orders do serve a legitimate role when made for other purposes. For example, such orders may appropriately protect the integrity of subsequent or related trials, or guard against the risk of a new trial following an appeal. When orders of that kind were made by Sully J and Hidden J, there were pending proceedings capable of justifying them on those other grounds.

Because the applicant had made clear it would not press the orders relating to the pseudonym orders unless it obtained relief under s 11(4B), and because that primary application failed for want of jurisdiction, the entire application was dismissed. On costs, the Court found that a successful jurisdictional objection alone does not establish an abuse of process, and declined to make any costs order against the applicant.

Orders Made

  • Application dismissed
  • No order as to costs

Key Takeaways

  • The power under s 11(4B) of the Children (Criminal Proceedings) Act 1987 to authorise publication of a child offender's name is strictly limited to the court that sentences the offender, and must be exercised at the time of sentencing. The Court of Criminal Appeal confirmed it cannot exercise that power on a later application by a third party such as a media organisation.
  • Section 11(1) is self-executing. Where its statutory protection already applies, there is no need for a court to make a separate order replicating the prohibition, and doing so risks creating unintended contempt liability that runs parallel to the statutory penalty scheme.
  • Non-publication and pseudonym orders remain available and appropriate when made for purposes distinct from the s 11 prohibition, such as protecting the fairness of related or subsequent proceedings or guarding against a potential retrial.
  • A successful jurisdictional objection to an application does not, without more, constitute an abuse of process sufficient to ground a special costs order. The mere fact that proceedings were always jurisdictionally hopeless did not satisfy the threshold identified in Markisic v Vizza.
  • Where courts wish to draw attention to the operation of s 11, the preferable approach is to issue directions highlighting the statutory obligation, rather than making orders in equivalent terms that carry their own contempt exposure.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 11, 11(1), 11(4)(a), 11(4)(c), 11(4B), 11(4C), 11(4D), 11(4E)
- Crimes Act 1900 (NSW), ss 61J, 61JA, 66C(1)
- Criminal Procedure Act 1986 (NSW), s 292

Cases:
- Markisic v Vizza [2002] NSWCCA 53