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Supreme Court 10 August 2016

R v Droudis (No. 1)

[2016] NSWSC 1975

Homicide
CRIMINAL LAW MURDER TRIAL SELF EXECUTING OPERATION OF S.15A

Citation: R v Droudis (No. 1) [2016] NSWSC 1975
Court: Supreme Court of New South Wales
Date: 10 August 2016
Judge: Johnson J

Background

The accused was charged with the murder of a woman (the deceased) on 21 April 2013. The trial was to proceed before Johnson J sitting alone, without a jury. The Crown's case alleged that the accused's partner, Man Monis (now deceased), arranged for the accused to murder his former wife, with access to and custody of the couple's two young sons forming part of the alleged motive.

Those two boys, born in 2004 and 2008, shared the same distinctive and unusual surname as their deceased mother. A third child connected with the trial was the accused's own daughter, born in 2000. All three were under 18 years of age and stood to be mentioned during the course of the trial.

A media article published before trial named some of these children. Senior counsel for the accused brought an urgent application, and the Crown raised no objection. The court considered what publication restrictions applied, and specifically whether the statutory prohibition in s 15A of the Children (Criminal Proceedings) Act 1987 extended to the name and photographs of the deceased mother herself.

  • Whether s 15A of the Children (Criminal Proceedings) Act 1987 applied automatically (that is, without any court order) to prohibit publication of the names of the three children connected with the trial.
  • Whether publication of the deceased mother's name would, in the circumstances, constitute a breach of s 15A by indirectly identifying her children.
  • Whether publication of a photograph of the deceased mother would similarly constitute a breach of s 15A(5).
  • Whether separate orders under the Court Suppression and Non-publication Orders Act 2010 were required to achieve the protection that s 15A already provided.

Decision

Johnson J confirmed that s 15A is a self-executing provision. It operates to prohibit the publication of identifying information about qualifying children without any court order being necessary. The three children all fell within the section: the two boys under s 15A(1)(c) and (d) as children who would be mentioned in the proceedings, and the accused's daughter on similar grounds.

On the central contested question, the court found that the deceased mother's surname was distinctive and unusual, and was shared by both boys. Publishing the deceased's name would therefore tend to identify the children and would, on the face of it, constitute a breach of s 15A. The protective reach of the section, extended by s 15A(5) to cover "any information, picture or other material that identifies the person or is likely to lead to the identification of the person," was broad enough to capture this indirect identification.

The court also considered whether publishing a photograph of the deceased could separately breach s 15A(5). Johnson J reasoned that a visual depiction of someone whose name cannot be published could itself create a chain of identification, particularly given the children's ongoing presence in the community and their possible connections to people who knew their mother. Accordingly, the court expressed the view that publishing a photograph of the deceased would also, on the face of it, breach s 15A(5).

Because s 15A already operated of its own force, the court concluded that no separate orders under the Court Suppression and Non-publication Orders Act 2010 were needed in respect of the three children. The earlier interim order made on 5 August 2016 (continued on 8 August) was revoked as unnecessary.

Orders Made

  • The non-publication order made on 5 August 2016 and continued on 8 August 2016 (relating to the three children) was revoked, as s 15A was found to operate without any separate court order.
  • The non-publication order made on 8 August 2016 in respect of the maternal grandparents of the two boys was continued until further order of the court.

Key Takeaways

  • Section 15A of the Children (Criminal Proceedings) Act 1987 is self-executing: it prohibits publication of identifying information about qualifying children in criminal proceedings without any court order being required.
  • Under s 15A(5), the prohibition extends beyond a child's name to encompass any information, picture, or other material that identifies, or is likely to identify, the child. This gives the provision a deliberately wide protective scope.
  • Where a deceased victim shares a distinctive and unusual surname with her children, publishing the victim's name can itself amount to a breach of s 15A by indirectly identifying those children.
  • The Supreme Court expressed the view that a photograph of the deceased mother would also breach s 15A(5), where publication could set off a chain of identification affecting the children within their social networks.
  • Separate orders under the Court Suppression and Non-publication Orders Act 2010 are not required where s 15A already covers the relevant children; courts may revoke interim suppression orders that duplicate the statute's own operation.

Legislation and Cases Referenced

Legislation
- Children (Criminal Proceedings) Act 1987 (NSW), s 15A
- Court Suppression and Non-publication Orders Act 2010 (NSW)

Cases
- Application by John Fairfax Publications Pty Ltd re MSK and Others [2006] NSWCCA 386
- R v BW and SW (No 2) (2009) 196 A Crim R 329; [2009] NSWSC 595
- R v Sam (No. 1) [2009] NSWSC 542