AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Supreme Court 14 August 2020

R v Dillon

[2020] NSWSC 1106

Homicide
MEDIA AND COMMUNICATIONS APPLICATION BY MEDIA TO DISCHARGE NON PUBLICATION ORDER WHETHER ORDER STILL “NECESSARY”

Citation: R v Dillon [2020] NSWSC 1106
Court: Supreme Court of NSW
Date: 14 August 2020
Judge(s): Campbell J

Background

At a sentencing hearing on 6 December 2019, Campbell J sentenced two offenders for affray. In the course of his reasons, the judge referred to the killing of a younger brother of one of the offenders, a minor at the time of his death. The judge made a non-publication order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), prohibiting publication of the deceased child's name, together with a separate order restricting publication of the sentencing reasons until completion of a related murder trial. A further order was made to protect the whereabouts of one of the offenders.

Two news organisations applied to discharge the first two orders. Their application was prompted by the pending murder trial before Harrison J, at which the person accused of the child's killing was to be tried without a jury. The media organisations argued that the non-publication orders inhibited their ability to provide full and accurate reports of those proceedings, which concerned matters of legitimate public interest.

A third non-publication order, protecting the whereabouts of one of the sentenced offenders, was not challenged and remained in place.

Legal Issues

  • Whether the non-publication order prohibiting publication of the deceased child's name remained "necessary" under the Court Suppression and Non-publication Orders Act 2010 (NSW) and should be discharged
  • Whether the order restricting publication of the sentencing reasons continued to serve a purpose given that the related murder trial was proceeding without a jury

Decision

Issue 1: Non-publication of the deceased child's name

Campbell J accepted that the order was effectively redundant. Section 15A of the Children's Criminal Proceedings Act 1987 (NSW) independently prohibits media organisations from publishing the name of a deceased child in such circumstances, and the exceptions to that prohibition, including publication with the consent of the senior next of kin, operate of their own force without any court order (at [5]-[6]). The judge found the order "otiose" in the language adopted from Spigelman CJ in John Fairfax Publications v MSK and Ors, because the statutory regime already governed what could and could not be published (at [5]). On that basis, the order was revoked.

The court declined to make any finding about whether the child's mother, as senior next of kin, had in fact consented to publication. The judge observed that the relevant statutory exceptions operate automatically as part of the written law, so a judicial finding on consent would serve no purpose (at [6]).

Issue 2: Restriction on publication of sentencing reasons

Campbell J explained that the restricted publication order for the sentencing reasons had been made in expectation that the murder accused would face a jury trial. In keeping with ordinary court practice, the restriction was intended to protect potential jurors from exposure to the sentencing material (at [7]). Because the murder trial was proceeding without a jury, the order no longer served any purpose and was discharged (at [7]).

Orders Made

  • The order prohibiting publication of the deceased child's name, made on 6 December 2019, is revoked.
  • The order restricting publication of the sentencing reasons for Joshua Dillon and James Rivera, made on 6 December 2019, is discharged.

Key Takeaways

  • A non-publication order may be revoked where separate legislation independently governs the same subject matter, rendering the order redundant or "otiose" in the terms used by Spigelman CJ in John Fairfax Publications v MSK and Ors (at [5]).
  • Section 15A of the Children's Criminal Proceedings Act 1987 (NSW) operates independently to restrict publication of a deceased child's name, with exceptions, including consent of the senior next of kin, taking effect by force of the statute rather than requiring separate court authorisation (at [5]-[6]).
  • Restricted publication orders made to protect jury trials do not automatically remain in force if the relevant proceedings are later conducted without a jury; the rationale for such orders is tied to the risk of prejudice to jurors (at [7]).
  • Where a statutory regime already governs a publication question, a court need not make factual findings, such as whether consent has been given, if doing so would serve no practical purpose (at [6]).
  • The Supreme Court revoked two of three non-publication orders on this motion, leaving in place the third order protecting the whereabouts of one of the sentenced offenders, which was not challenged (at [8]).

Legislation and Cases Referenced

Legislation
- Children’s Criminal Proceedings Act 1987 (NSW) s 15A
- Court Suppression and Non-publication Orders Act 2010 (NSW) ss 7, 8

Cases
- John Fairfax Publications Pty Ltd v MSK and Ors [2006] NSWCCA 386