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Supreme Court 15 July 2024

R v Diallo & Ors (No 1)

[2024] NSWSC 852

Homicide
CRIMINAL LAW OPEN OR CLOSED COURT WHERE ACCUSED ADULT AT TIME OF TRIAL APPLICATION OF STATUTE APPLICATION OF AUTHORITIES COURT MUST REMAIN OPEN TO THE PUBLIC

Citation: R v Diallo & Ors (No 1) [2024] NSWSC 852
Court: Supreme Court of New South Wales
Date: 15 July 2024
Judge: Hamill J

Background

Five young men faced a murder charge arising from events on or about 1 September 2021. Three of the accused (referred to as AD, YA, and AG) were under eighteen years of age at the time of the alleged offence, while the remaining two accused were adults at that time. By the time of the pre-trial hearing in July 2024, all five accused were adults, with AD, YA, and AG each aged approximately twenty years.

Because three of the accused had been children at the time of the alleged offence, the court had been closed to the public during earlier directions hearings and on the first day of the pre-trial hearing. On the second day of that hearing, Hamill J directed that the court be open and later provided written reasons for that direction.

The central question was whether section 10 of the Children (Criminal Proceedings) Act 1987 (NSW) required the court to be closed to the public in proceedings where an accused was a child at the time of the alleged offence but had since turned eighteen before the trial commenced.

  • Whether section 10 of the Children (Criminal Proceedings) Act 1987 (NSW) requires a closed court where an accused was a child at the time of the offence but is an adult at the time of the proceedings.
  • Whether the Court of Criminal Appeal's decision in GBB v R [2019] NSWCCA 296 was binding authority on this question.
  • Whether any other basis existed to close the court in these circumstances.

Decision

Hamill J held that section 10 of the Act, on its plain and literal text, requires the exclusion of the public only from proceedings "to which a child is a party." Because all five accused were adults at the time of the pre-trial hearing, none of them met the Act's definition of "child" (a person under eighteen years). Accordingly, the provision was not engaged, and the court was required to remain open.

His Honour observed that this construction was reinforced by the language used elsewhere in the Act. Section 15A, which prohibits publication of material identifying a person connected with proceedings, expressly refers to persons who "were a child when the offence was committed." The legislature's use of that past-tense formulation in section 15A, contrasted with the present-focused language of section 10, pointed firmly toward the literal reading of section 10.

His Honour found that this interpretation was confirmed by the Court of Criminal Appeal's decision in GBB v R [2019] NSWCCA 296. In that case, Basten JA (with whom Macfarlan JA and Campbell J agreed) held that section 10 was not engaged because the appellant was no longer a child at the time of the appeal, regardless of his age at the time of offending. Senior Counsel for YA submitted that this passage was binding, and Hamill J agreed. His Honour also noted that Dhanji J had reached the same conclusion in R v JM (No 2) [2024] NSWSC 771, in relevantly similar circumstances.

Hamill J acknowledged that the literal construction could produce some uneven outcomes, particularly where proceedings straddle an accused's eighteenth birthday. However, his Honour noted that the fundamental public interest in open justice, the text of the Act, and binding authority all pointed in the same direction. His Honour left open the possibility of specific exceptions, such as where a child witness gives evidence or particularly sensitive evidence is adduced, but was satisfied the court should remain open for the pre-trial hearing and the trial itself.

Orders Made

• The Court should not be closed during the pre-trial hearing and the trial itself
• Orders made accordingly (with possible specific exceptions, for example, if a child is to give evidence or sensitive evidence is adduced)

Key Takeaways

  • Section 10 of the Children (Criminal Proceedings) Act 1987 (NSW) requires a closed court only when a child is a party to proceedings at the time those proceedings are heard, not merely because the accused was a child when the alleged offence occurred.
  • The Court of Criminal Appeal confirmed in GBB v R [2019] NSWCCA 296 that once an accused turns eighteen before proceedings commence, the section 10 public exclusion provision is not engaged by the accused's age.
  • Contrasting statutory language matters: section 15A expressly extends its publication restrictions to persons who "were" children at the time of the offence, whereas section 10 uses present-tense language directed at current parties to proceedings. Courts treating this distinction as significant will apply it to limit the scope of section 10.
  • The fundamental principle of open justice operates as a default, and absent a specific statutory provision or other powerful consideration, courts conducting criminal proceedings involving adult accused must remain open to the public.
  • Specific exceptions to the open court rule may still apply in individual circumstances, such as where a child gives evidence or particularly sensitive material is adduced, even where section 10 does not apply in general terms.

Legislation and Cases Referenced

Legislation:
- Children (Criminal Proceedings) Act 1987 (NSW), ss 3, 10, 15A, 15A(1)(a), 15A(1)(b)
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 6, 8(1)
- Criminal Procedure Act 1986 (NSW), ss 291, 291A, 291B, 291C, 294C
- Interpretation Act 1987 (NSW), s 21C

Cases:
- GBB v R [2019] NSWCCA 296
- R v JM (No 2) [2024] NSWSC 771