Citation: R v AA, AS, MH & OM [2009] NSWDC 25
Court: District Court of New South Wales
Date: 20 February 2009
Judge(s): Cogswell SC DCJ
Background
Four young male offenders, all under 18 at the time of both the offences and the sentencing proceedings, had pleaded guilty to aggravated sexual intercourse with a child aged between 10 and 14 years. The aggravation alleged was that the offenders acted in company. The offences occurred in various locations, including public places such as park toilet blocks.
Sentencing proceedings had commenced at Parramatta and continued at the Downing Centre in Sydney on 29 January 2009. Following that hearing date, Channels Seven and Nine broadcast television news items about the proceedings. Counsel for the offenders alleged that, despite some pixilation, the broadcasts effectively identified their clients and, in some cases, the offenders' fathers, to people who had not previously known of their involvement.
The consequences described to the court included neighbours, friends, and workmates making contact with the offenders after recognising them from the broadcasts, and in at least one case the revelation caused a serious rift within a family. Defence counsel applied to exclude media representatives from the remainder of the sentencing proceedings.
Legal Issues
- Whether the media had breached section 11 of the Children (Criminal Proceedings) Act 1987 by broadcasting material likely to identify the child offenders in connection with the criminal proceedings.
- Whether the court should exercise its discretion under section 10(1)(b) of the Children (Criminal Proceedings) Act 1987 to exclude media representatives from the sentencing proceedings, overriding their usual statutory entitlement to remain.
- How to balance the public interest in open court reporting against the legislative policy of protecting child offenders and supporting their reintegration into the community.
Decision
The court acknowledged a direct tension between two significant public interests: the longstanding principle of open justice, which includes press access to court proceedings, and the community's interest in the care, welfare, and rehabilitation of children, including those who have committed offences. The Children (Criminal Proceedings) Act 1987 itself strikes a balance between these interests by excluding the general public from proceedings involving child parties while preserving a default entitlement for media representatives to attend, subject to a court direction otherwise.
Cogswell SC DCJ accepted, on the material provided from the bar table (noting that the Evidence Act 1995 does not apply to sentencing proceedings absent a specific direction), that the television broadcasts had effectively identified a number of the offenders to people who were previously unaware of their involvement. This exposure was found to be contrary to the protective objects of the legislation, particularly the principles in section 6 requiring courts to consider children's reintegration into the community and the recognition of their immaturity as a relevant factor.
The court gave the media present an opportunity to make representations before ruling, consistent with the practice observed by counsel in the Children's Court. After considering those submissions alongside the competing interests, the court concluded that permitting the media to remain carried a real risk of further compromising the legislative objectives. The potential for continued identification of the offenders through ongoing reporting weighed in favour of exclusion.
Although the court noted the significant public interest in how courts deal with serious sexual offences committed in public places, it found that this did not outweigh the legislative policy protecting child offenders in the specific circumstances arising from the prior broadcasts. Importantly, the court observed that the victim, also a child aged 13, would be considered separately when imposing sentence and that her interests, though not central to the procedural application, remained a matter of serious concern.
Orders Made
- Media representatives engaged in preparing reports for dissemination through public news media were directed to be excluded from the proceedings under section 10(1)(b) of the Children (Criminal Proceedings) Act 1987.
Key Takeaways
- The District Court confirmed that the default entitlement of media representatives to attend proceedings under the Children (Criminal Proceedings) Act 1987 is not absolute and may be displaced by a court direction under section 10(1)(b).
- Under section 11 of the Act, the prohibition on publishing or broadcasting material that identifies a child offender extends beyond the offender's name to any information, picture, or other material likely to lead to identification, including pixilated images where the identification remains apparent.
- Sentencing proceedings involving child offenders are not governed by the Evidence Act 1995 unless the court directs otherwise, meaning the court may act on information provided from the bar table when determining procedural applications of this kind.
- The legislative principles in section 6 of the Act, particularly reintegration of child offenders into the community, carry real weight when a court exercises its discretion to limit press access, especially where prior media coverage has already caused harm of the kind the Act was designed to prevent.
- Sufficient basis existed to exclude the media where prior broadcasts had effectively identified offenders to their workplaces, neighbours, and family members, creating a risk that continuing coverage would cause further damage contrary to the statute's protective objects.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), sections 6, 10, 11
- Evidence Act 1995 (NSW)
Cases cited: No cases were cited in the judgment.