Citation: [2024] NSWDC 481
Court: District Court of NSW
Date: 30 September 2024
Judge(s): Fitzsimmons SC DCJ
Background
The accused stood trial on three charges of failing to comply with an extended supervision order under s 12 of the Crimes (High Risk) Offenders Act 2006. The alleged contraventions occurred on three occasions on the same day in October 2023. The extended supervision order had been imposed by the Supreme Court after the accused was classified as a high-risk violent offender following his release from custody.
The background to the supervision order was significant. In 2002, when the accused was 13 years and 10 months old, he was convicted and sentenced for the murder of a three-year-old child. One condition of the supervision order prohibited him from associating with anyone under 18, except in limited, supervised circumstances.
A joint submission raised the question of whether the accused's name could be published or broadcast in connection with the current trial proceedings. The parties agreed his name should not be published in a way that identified him by reference to the murder conviction, but the Crown argued his name could otherwise be published in the context of the extended supervision order contraventions.
Legal Issues
- Whether s 15A of the Children (Criminal Proceedings) Act 1987 imposes an ongoing prohibition on publishing or broadcasting the accused's name in relation to the current trial, notwithstanding that the accused is now an adult.
- Whether the Crown's proposed distinction, permitting publication of the accused's name in connection with the supervision order breaches but not the underlying murder conviction, was workable and consistent with s 15A.
Decision
Issue 1: Scope of the s 15A prohibition
The court found that s 15A of the Children (Criminal Proceedings) Act 1987 operates as an ongoing prohibition on publishing or broadcasting the accused's name in relation to the current trial proceedings (at [6]). The accused's contention, that naming him in these proceedings necessarily connects him to the criminal proceedings arising from his conviction and sentence for murder committed while he was a child, was accepted (at [5]).
Issue 2: The Crown's proposed distinction
The court rejected the Crown's contention that the accused's name could be published in the context of the supervision order contraventions without also engaging the prohibition. Even if there were ambiguity in s 15A, the Crown's position was not practically capable of being implemented (at [6]). Publication of the accused's name in connection with the supervision order breaches would inevitably expose his identity in the context of the murder conviction and the resulting supervision order, which would constitute a contravention of s 15A (at [7]).
Issue 3: Application to an adult accused
The court noted that s 15A(4) of the Act expressly provides that the prohibition applies even where the person is no longer a child at the time of publication or broadcast. On that basis, the court was satisfied that the non-publication order in relation to the accused's name remained in place (at [8]).
Orders Made
- In accordance with s 15A of the Children (Criminal Proceedings) Act 1987, there is to be a prohibition on the publishing or broadcasting of the accused's name with respect to these proceedings.
Key Takeaways
- Under s 15A of the Children (Criminal Proceedings) Act 1987, the prohibition on publishing or broadcasting the name of a person convicted of an offence as a child is ongoing and is not extinguished when that person reaches adulthood (at [8]).
- The District Court held that where current proceedings are inextricably connected to an earlier conviction entered when the accused was a child, naming the accused in the current proceedings engages the s 15A prohibition, even if the charges themselves arose in adulthood (at [5]-[6]).
- A proposed distinction between permitting publication in the context of supervision order breaches while prohibiting it in the context of the underlying conviction was found to be unworkable in practice, because publication of one would inevitably reveal the other (at [6]-[7]).
- Section 15A(4) of the Act removes any doubt that the prohibition operates in respect of a person who was a child at the time of the offence but is an adult at the time of any publication or broadcast (at [8]).
- This ruling arose as a procedural matter during trial and was resolved by the court on the basis of a joint submission, with the contested question being only the scope of the prohibition, not its existence.
Legislation and Cases Referenced
Legislation
- Children (Criminal Proceedings) Act 1987 , s 12
- Crimes (High Risk) Offenders Act 2006 , s 15A
Cases
- Not stated