Citation: R v AA, AS, MH & OM [2009] NSWDC 40
Court: District Court of New South Wales
Date: 27 February 2009
Judge(s): Cogswell SC DCJ
Background
Four juvenile offenders faced sentencing in the District Court for aggravated sexual intercourse with a child aged between 10 and 14 years. The proceedings had attracted media coverage, and news broadcasts on 29 January 2009 aired footage of the offenders, albeit with pixelation applied to their faces.
One week before this judgment, the court had already made an order under s 10(1)(b) of the Children (Criminal Proceedings) Act 1987 excluding media representatives from the proceedings. Three media organisations, the Seven Network, Nine Network, and Nationwide News, then sought leave to appear and to re-agitate that exclusion order, now represented by counsel.
The court allowed counsel for the media to make fresh submissions, noting that media had not been legally represented at the original hearing. The central dispute was whether excluding the media from the sentencing proceedings was justified given the competing values of open justice and the statutory protection afforded to juvenile offenders.
Legal Issues
- Whether the prior order excluding media representatives from court under s 10(1)(b) of the Children (Criminal Proceedings) Act 1987 should be maintained or revoked.
- Whether the television broadcasts of 29 January 2009 had effectively identified, or were likely to lead to the identification of, the offenders within the meaning of s 11 of the Act.
- Whether the circumstances met the threshold for exclusion, given the constitutional importance of open justice and the principle that in-camera proceedings are warranted only in highly exceptional circumstances.
- Whether the protection afforded by the Act extended to identification by people who already knew the offenders personally.
Decision
The court accepted evidence from one offender that, following the television broadcasts, he was contacted by a former school friend, a former workmate, and a neighbour, none of whom he had reason to believe previously knew of his involvement in the offence. He was subsequently dismissed from employment. The court found, on the balance of the evidence, that these contacts resulted directly from what those individuals had seen on television, given the clear temporal connection.
Cogswell SC DCJ acknowledged that the media organisations had made genuine efforts to obscure the offenders' identities through pixelation. The court nonetheless found those efforts had not been sufficiently effective, at least in relation to one offender, to prevent identification.
The court rejected the submission that the identification test under s 11(5) of the Act is limited to identification by strangers. The court reasoned that the legislature's purpose was to protect a young person's identity from disclosure to any person, including those who may already know them, and that disclosure to acquaintances may in fact cause greater harm, particularly in the employment context.
While accepting the constitutional weight of open justice and the high threshold for excluding the public from court, the court held that the statutory protection of the Act and the demonstrated risk of further identification justified continuing the exclusion. The court also noted it had not concluded that any media organisation had breached s 11 of the Act. Separately, the court ruled that media would be permitted to return for the pronouncement of sentences, as the sentencing terms themselves would not compromise the Act's protective objects.
Orders Made
- The application by the media organisations to revoke the exclusion order was refused.
- All persons engaged in preparing reports on the proceedings for dissemination through a public news medium were directed to leave the court during the sentencing hearing.
- The court indicated it would re-open proceedings to the media for the formal announcement of sentences.
Key Takeaways
- The District Court confirmed that the test for identification under s 11(5) of the Children (Criminal Proceedings) Act 1987 is objective and is not limited to identification by people who were previously unaware of the young person's involvement in proceedings.
- Disclosure of a young person's identity to acquaintances, former colleagues, or neighbours can constitute, or materially contribute to, a breach of the Act's protective provisions, and may cause equal or greater harm than disclosure to strangers.
- A high threshold applies before courts exclude the public or media from proceedings, requiring circumstances that are truly exceptional and where the presence of the public would defeat the administration of justice. However, the court found that demonstrated, ongoing identification of a juvenile offender from prior broadcasts met that threshold in this case.
- Where pixelation or other concealment measures used in broadcasts prove insufficient to prevent actual identification, that practical failure is a relevant consideration in assessing whether further court attendance by media creates unacceptable risk.
- The court drew a distinction between the sentencing proceedings themselves (from which media were excluded) and the formal announcement of sentences (to which media were to be readmitted), reflecting a case-by-case, stage-by-stage approach to balancing open justice against statutory protections.
Legislation and Cases Referenced
Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 10(1)(b), 11, 11(5)
- Evidence Act 1995 (NSW)
Cases:
- John Fairfax Publications Pty Limited v The District Court of New South Wales (2004) 61 NSWLR 344 (Court of Appeal)
- An Application by John Fairfax Publications Pty Limited re MSK, MAK, MMK and MRK [2006] NSWCCA 386 (Court of Criminal Appeal)
- R v LMW [1999] NSWSC 1111 (Studdert J)
- R v AA, AS, MH, and OM [2009] NSWDC 25 (earlier judgment in same proceedings)