Citation: [2013] NSWLC 1
Court: Local Court of NSW
Date: 15 February 2013
Judge(s): Magistrate P.S. Dare SC
Background
The applicant, identified only as "S," was born in 1994 and faced charges in two separate jurisdictions. Three charges, including making false calls to emergency services and dishonestly obtaining a financial advantage by deception, were listed before the Children's Court. A further nineteen charges of a similar nature were listed before the Local Court. All matters were due to appear for the first time on 19 February 2013.
The applicant's solicitors sought a suppression or non-publication order to prevent his name from appearing on the Local Court's publicly displayed court list. Their concern was that, because Young is a small town, the applicant's family is well known there, and media had previously reported on the charges without naming him (recognising his youth at the time of some alleged offences), any public identification in the Local Court context would effectively identify him as the defendant in the Children's Court proceedings, where a statutory prohibition on naming defendants exists.
The Police Prosecutor appeared for the informant, and the matter raised a focused question about the statutory threshold for granting suppression or non-publication orders under the Court Suppression and Non-publication Orders Act 2010 (the CSNPO Act).
Legal Issues
- Whether publishing the applicant's name in connection with Local Court proceedings would, in practical terms, identify him as a defendant in Children's Court proceedings, thereby defeating the statutory protection under the Children (Criminal Proceedings) Act 1987.
- Whether the applicant's circumstances satisfied the "necessary" threshold in section 8(1) of the CSNPO Act, which requires more than convenience, reasonableness, or a balancing exercise in favour of suppression.
- Whether an order was warranted on any of the available grounds, including prevention of prejudice to the administration of justice or the public interest ground under section 8(1)(e).
Decision
The open justice principle and the "necessary" threshold: Magistrate Dare SC reviewed the applicable authorities at length. The court emphasised that, under section 6 of the CSNPO Act, open justice is a primary objective that a court must actively safeguard. The word "necessary" in section 8 sets a high bar. Citing the Court of Appeal's reasoning in Rinehart v Welker and the High Court's statement in Hogan v Australian Crime Commission, the magistrate confirmed that an order is not "necessary" merely because it is convenient, reasonable, sensible, or the outcome of a balancing exercise. An applicant must make out the case strictly and bring it to the standard the underlying principle demands.
Whether naming the applicant in Local Court would identify him in Children's Court: The magistrate acknowledged that identification in the Local Court proceedings would likely attract media coverage and cause embarrassment to the applicant and his family. However, the court found that the existing procedural safeguards for Children's Court proceedings, including the absence of a publicly displayed list and the requirement that hearings take place in a closed court, adequately protect the applicant's identity in that context. The two proceedings, though listed on the same day, are conducted separately and under distinct rules. The magistrate observed that this arrangement may appear artificial but functions as intended.
Factual insufficiency: The applicant's arguments, centring on the town's small size, his family's local prominence, and prior media interest, did not reach the level of factual demonstration required to establish necessity under section 8(1). The magistrate noted that a court can do little about community rumour in a small town, and that no material before the court supported a conclusion that the prescribed safeguards would fail to protect the applicant's identity in the Children's Court context.
Orders Made
- Application for suppression or non-publication order dismissed.
Key Takeaways
- Under section 8 of the CSNPO Act, the word "necessary" imposes a demanding standard. A suppression or non-publication order is not available merely because it would be convenient, reasonable, or the product of a balancing exercise that favours the applicant.
- The fact that a defendant simultaneously faces charges in both the Local Court and the Children's Court does not, without more, establish the necessity for a suppression order in the Local Court proceedings. Separate procedural rules, including closed hearings and the absence of a public list for Children's Court matters, operate to protect a young defendant's identity independently.
- Practical concerns such as a community's small size, a family's local prominence, and prior media interest, while understandable, are insufficient to satisfy the statutory threshold if the existing legal safeguards remain available and operative.
- In dismissing the application, the Local Court reaffirmed that the open justice principle is the starting point, and that any departure from it must be strictly justified by reference to the statutory grounds, not by sympathy for the applicant's circumstances.
- An applicant for a suppression or non-publication order carries the burden of demonstrating, by reference to actual material before the court, that necessity is established. Mere belief or assertion that an order is necessary does not suffice.
Legislation and Cases Referenced
Legislation
- Children (Criminal Proceedings) Act 1987
- Court Suppression and Non-publication Orders Act 2010
- Crimes Act 1900
- Criminal Code Act 1995 (Cth)
Cases
- Hogan v Australian Crime Commission (2010) 240 CLR 651
- John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465
- John Fairfax Publications Pty Limited v District Court of New South Wales (2004) 61 NSWLR 344
- R v Macfarlane; Ex parte O'Flanagan and O'Kelly [1923] HCA 39; (1923) 32 CLR 518
- Rinehart v Welker [2011] NSWCA 403
- Scott v Scott [1913] AC 417