Citation: R v JM (No 2) [2024] NSWSC 771
Court: Supreme Court of New South Wales
Date: 20 May 2024
Judge(s): Dhanji J
Background
The accused faced trial in the Supreme Court on charges of murder and wounding with intent to cause grievous bodily harm. He was 17 years and several months old at the time of the alleged offending, making him a child under the Children (Criminal Proceedings) Act 1987 (NSW). By the time the trial was listed to commence, he was 19 years old and therefore an adult under the same Act.
At the outset of the trial, a question arose as to whether section 10 of the Act required the Court to be closed to the public. The issue turned on whether the closing requirement applied based on the accused's age at the time of the alleged offence, or his age at the time of the proceedings.
Legal Issues
- Whether section 10 of the Children (Criminal Proceedings) Act 1987 (NSW) required the trial court to be closed where the accused was a child at the time of the alleged offence but was an adult at the time of the proceedings.
- Whether the court was bound by the approach taken in GBB v R [2019] NSWCCA 296 on this question.
Decision
The proper construction of section 10:
Section 10(1) of the Act provides for the court to be closed when it is dealing with "criminal proceedings to which a child is a party." Dhanji J noted that a literal reading of this provision focuses on whether the accused is a child at the time of the proceedings, not at the time of the alleged offence (at [1], [6]). His Honour observed that this literal reading can produce outcomes that depend on when proceedings happen to be listed (at [3]).
His Honour contrasted section 10 with section 15A of the Act, which expressly prohibits publication of proceedings in a way that connects a person to criminal proceedings where "the person was a child when the offence to which the proceedings relate was committed." This distinction in drafting suggested that, had Parliament intended section 10 to operate by reference to the accused's age at the time of the offence, similar language would have been used (at [6]).
Binding authority:
Dhanji J identified the New South Wales Court of Criminal Appeal decision in GBB v R [2019] NSWCCA 296 as directly on point. In that case, Basten JA applied a literal reading of section 10, holding that the provision operated according to the accused's age at the time of the proceedings (at [7]-[8]). His Honour acknowledged that possible alternative constructions existed, including reading "criminal proceedings to which a child is a party" as encompassing an accused who was a child when joined to the proceedings. Nonetheless, the issue had been squarely raised and decided in GBB v R by a superior court, and Dhanji J held he was bound by that decision (at [8]).
His Honour added that, even without that constraint, his own analysis tended toward the same conclusion (at [9]).
Orders Made
- The Court will not be closed.
Key Takeaways
- Section 10 of the Children (Criminal Proceedings) Act 1987 (NSW) operates according to the accused's age at the time of the proceedings, not at the time of the alleged offence. An accused who was a child when the offence was allegedly committed but is an adult at trial does not trigger the court-closing requirement (at [8]-[9]).
- The Court of Criminal Appeal's decision in GBB v R [2019] NSWCCA 296 is binding on the Supreme Court on this point, having squarely addressed and decided the question (at [8]).
- A notable drafting contrast exists within the Act: section 15A expressly applies by reference to the accused's age at the time of the offence, whereas section 10 contains no equivalent language. This textual difference supports a literal, time-of-proceedings reading of section 10 (at [6]).
- The closing of proceedings and publication restrictions operate independently. Even where section 10 does not require the court to be closed, section 15A may still prohibit publication of proceedings in a way that connects a person who was a child at the time of the offence to those criminal proceedings (at [5]).
- Dhanji J acknowledged that general practice appears to have been to close courts whenever the accused was a child at the time of the alleged offence, but found this practice does not accord with the ordinary reading of section 10 or with binding authority (at [6]).
Legislation and Cases Referenced
Legislation
- Children (Criminal Proceedings) Act 1987 (NSW)
Cases
- GBB v R [2019] NSWCCA 296